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88–239 PDF 2015

POTENTIAL IMPACTS OF PROPOSED CHANGES 

TO THE CLEAN WATER ACT JURISDICTIONAL 

RULE 

(113–73) 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

WATER RESOURCES AND ENVIRONMENT 

OF THE

COMMITTEE ON 

TRANSPORTATION AND 

INFRASTRUCTURE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

JUNE 11, 2014 

Printed for the use of the 

Committee on Transportation and Infrastructure 

( 

Available online at: http://www.gpo.gov/fdsys/browse/ 

committee.action?chamber=house&committee=transportation 

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE 

BILL SHUSTER, Pennsylvania, Chairman 

DON YOUNG, Alaska 

THOMAS E. PETRI, Wisconsin 

HOWARD COBLE, North Carolina 

JOHN J. DUNCAN, JR., Tennessee, 

Vice Chair 

JOHN L. MICA, Florida 

FRANK A. LOBIONDO, New Jersey 

GARY G. MILLER, California 

SAM GRAVES, Missouri 

SHELLEY MOORE CAPITO, West Virginia 

CANDICE S. MILLER, Michigan 

DUNCAN HUNTER, California 

ERIC A. ‘‘RICK’’ CRAWFORD, Arkansas 

LOU BARLETTA, Pennsylvania 

BLAKE FARENTHOLD, Texas 

LARRY BUCSHON, Indiana 

BOB GIBBS, Ohio 

PATRICK MEEHAN, Pennsylvania 

RICHARD L. HANNA, New York 

DANIEL WEBSTER, Florida 

STEVE SOUTHERLAND, II, Florida 

JEFF DENHAM, California 

REID J. RIBBLE, Wisconsin 

THOMAS MASSIE, Kentucky 

STEVE DAINES, Montana 

TOM RICE, South Carolina 

MARKWAYNE MULLIN, Oklahoma 

ROGER WILLIAMS, Texas 

MARK MEADOWS, North Carolina 

SCOTT PERRY, Pennsylvania 

RODNEY DAVIS, Illinois 

MARK SANFORD, South Carolina 

DAVID W. JOLLY, Florida 

NICK J. RAHALL, II, West Virginia 

PETER A. DEFAZIO, Oregon 

ELEANOR HOLMES NORTON, District of 

Columbia 

JERROLD NADLER, New York 

CORRINE BROWN, Florida 

EDDIE BERNICE JOHNSON, Texas 

ELIJAH E. CUMMINGS, Maryland 

RICK LARSEN, Washington 

MICHAEL E. CAPUANO, Massachusetts 

TIMOTHY H. BISHOP, New York 

MICHAEL H. MICHAUD, Maine 

GRACE F. NAPOLITANO, California 

DANIEL LIPINSKI, Illinois 

TIMOTHY J. WALZ, Minnesota 

STEVE COHEN, Tennessee 

ALBIO SIRES, New Jersey 

DONNA F. EDWARDS, Maryland 

JOHN GARAMENDI, California 

ANDRE ́ CARSON, Indiana 

JANICE HAHN, California 

RICHARD M. NOLAN, Minnesota 

ANN KIRKPATRICK, Arizona 

DINA TITUS, Nevada 

SEAN PATRICK MALONEY, New York 

ELIZABETH H. ESTY, Connecticut 

LOIS FRANKEL, Florida 

CHERI BUSTOS, Illinois 

(II) 

SUBCOMMITTEE ON WATER RESOURCES AND ENVIRONMENT

BOB GIBBS, Ohio, Chairman 

DON YOUNG, Alaska 

GARY G. MILLER, California 

SHELLEY MOORE CAPITO, West Virginia 

CANDICE S. MILLER, Michigan 

ERIC A. ‘‘RICK’’ CRAWFORD, Arkansas, 

Vice Chair 

DANIEL WEBSTER, Florida 

JEFF DENHAM, California 

REID J. RIBBLE, Wisconsin 

THOMAS MASSIE, Kentucky 

STEVE DAINES, Montana 

TOM RICE, South Carolina 

MARKWAYNE MULLIN, Oklahoma 

MARK MEADOWS, North Carolina 

RODNEY DAVIS, Illinois 

MARK SANFORD, South Carolina 

DAVID W. JOLLY, Florida 

BILL SHUSTER, Pennsylvania (Ex Officio) 

TIMOTHY H. BISHOP, New York 

DONNA F. EDWARDS, Maryland 

JOHN GARAMENDI, California 

LOIS FRANKEL, Florida 

ELEANOR HOLMES NORTON, District of 

Columbia 

EDDIE BERNICE JOHNSON, Texas 

GRACE F. NAPOLITANO, California 

STEVE COHEN, Tennessee 

JANICE HAHN, California 

RICHARD M. NOLAN, Minnesota 

ANN KIRKPATRICK, Arizona 

DINA TITUS, Nevada 

SEAN PATRICK MALONEY, New York 

NICK J. RAHALL, II, West Virginia 

(Ex Officio) 

(III) 

(V) 

CONTENTS Page 

Summary of Subject Matter .................................................................................... vii 

TESTIMONY 

PANEL 1 

Hon. Robert W. Perciasepe, Deputy Administrator, U.S. Environmental Protection Agency ...................................................................................................... 7 

Hon. Jo-Ellen Darcy, Assistant Secretary of the Army (Civil Works) ................. 7 

PANEL 2 

J.D. Strong, executive director, Oklahoma Water Resources Board, on behalf 

of the Western Governors’ Association and Western States Water Council ... 52 

Mark T. Pifher, manager, Southern Delivery System, Colorado Springs Utilities, on behalf of the National Water Resources Association and Western 

Urban Water Coalition ........................................................................................ 52 

Warren ‘‘Dusty’’ Williams, general manager/chief engineer, Riverside County, 

California, Flood Control and Water Conservation District, on behalf of 

the National Association of Counties and the National Association of Flood 

and Stormwater Management Agencies ............................................................. 52 

Bob Stallman, president, American Farm Bureau Federation ............................ 52 

Kevin Kelly, president, Leon Weiner and Associates, Inc., and chairman of 

the board, National Association of Home Builders ........................................... 52 

Eric Henry, president, TS Designs, on behalf of the American Sustainable 

Business Council .................................................................................................. 52 

PREPARED STATEMENT SUBMITTED BY MEMBER OF CONGRESS 

Hon. Sam Graves, of Missouri ................................................................................ 75 

PREPARED STATEMENTS SUBMITTED BY WITNESSES 

Hon. Robert W. Perciasepe ..................................................................................... 77 

Hon. Jo-Ellen Darcy ................................................................................................ 95 

J.D. Strong ............................................................................................................... 106 

Mark T. Pifher ......................................................................................................... 137 

Warren ‘‘Dusty’’ Williams ........................................................................................ 148 

Bob Stallman ............................................................................................................ 157 

Kevin Kelly ............................................................................................................... 177 

Eric Henry ................................................................................................................ 188 

SUBMISSIONS FOR THE RECORD 

Hon. Donna F. Edwards, a Representative in Congress from the State of 

Maryland, submission of a letter from the following organizations: American Fly Fishing Trade Association, Backcountry Hunters and Anglers, 

B.A.S.S., LLC, Berkley Conservation Institute, Bull Moose Sportmen’s Alliance, International Federation of Fly Fishers, Izaak Walton League of 

America, National Wildlife Federation, North American Grouse Partnership, Pheasants Forever, Quail Forever, Snook and Gamefish Foundation, 

The Nature Conservancy, Theodore Roosevelt Conservation Partnership, 

and Trout Unlimited, June 3, 2014 .................................................................... 25 

Warren ‘‘Dusty’’ Williams, general manager/chief engineer, Riverside County, 

California, Flood Control and Water Conservation District, on behalf of 

the National Association of Counties and the National Association of Flood 

and Stormwater Management Agencies, slides accompanying his opening 

remarks.................................................................................................................. 58–60 

Page

VI 

Hon. Robert W. Perciasepe, Deputy Administrator, U.S. Environmental Protection Agency, answers to questions for the record from the following 

Representatives: 

Hon. Timothy H. Bishop, of New York ........................................................... 87 

Hon. Lois Frankel, of Florida .......................................................................... 89 

Hon. Grace F. Napolitano, of California ......................................................... 91 

Hon. Dina Titus, of Nevada ............................................................................. 92 

Hon. Jo-Ellen Darcy, Assistant Secretary of the Army (Civil Works): 

Cover letter to Hon. Timothy H. Bishop, a Representative in Congress 

from the State of New York, accompanying responses to questions 

for the record ................................................................................................. 102 

Answers to questions for the record from the following Representatives: 

Hon. Grace F. Napolitano, of California .................................................. 104 

Hon. Dina Titus, of Nevada ...................................................................... 104 

J.D. Strong, written testimony in the capacity of his role as executive director, 

Oklahoma Water Resources Board ..................................................................... 129 

Eric Henry, president, TS Designs, on behalf of the American Sustainable 

Business Council, answers to questions for the record from Hon. Timothy 

H. Bishop, a Representative in Congress from the State of New York ........... 191 

ADDITIONS TO THE RECORD 

American Rivers, written testimony of Stacey Detwiler, associate director, 

clean water supply and government relations ................................................... 193 

American Road and Transportation Builders Association, written testimony ... 201 

Clean Water Action, written testimony of Jennifer Peters, national water 

campaigns coordinator ......................................................................................... 205 

Colorado Clean Water Coalition, written testimony of Hon. Jack Hilbert, 

chairman ............................................................................................................... 208 

Frank A. Logoluso Farms, Inc., written testimony of Janie Logoluso, CEO ...... 214 

Healing Our Waters—Great Lakes Coalition, written testimony of Todd 

Ambs, coalition director ....................................................................................... 216 

International Council of Shopping Centers, written testimony ........................... 219 

Michigan Farm Bureau, written testimony of Laura A. Campbell, manager, 

Agricultural Ecology Department ....................................................................... 221 

National Association of Realtors, written testimony ............................................ 223 

National Stone, Sand and Gravel Association, written testimony ...................... 239 

National Parks Conservation Association, written testimony of Chad W. Lord, 

senior director, water policy ................................................................................ 243 

National Wildlife Federation, written testimony of Jan Goldman-Carter, senior manager, wetlands and water resources; and Daniel Hubbell, water 

resources and restoration .................................................................................... 247 

Natural Resources Defense Council, written testimony of Jon P. Devine, Jr., 

senior attorney, water program .......................................................................... 250 

Portland Cement Association, written testimony of Cary Cohrs, chairman 

of the board; and president, American Cement Company, LLC ...................... 253 

Portland Cement Association, Ohio cement industry data .................................. 255 

Southern Environmental Law Center, written testimony of Navis A. 

Bermudez, deputy legislative director ................................................................ 257 

Theodore Roosevelt Conservation Partnership, written testimony of Whit 

Fosburgh, president and CEO ............................................................................. 260 

Trout Unlimited, written testimony of Steve Moyer, vice president of government affairs .......................................................................................................... 262 

WateReuse Association, written testimony of Melissa L. Meeker, executive 

director .................................................................................................................. 265 

Waters Advocacy Coalition, written testimony of Deidre G. Duncan .................. 268 

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(1) 

POTENTIAL IMPACTS OF PROPOSED 

CHANGES TO THE CLEAN WATER ACT 

JURISDICTIONAL RULE 

WEDNESDAY, JUNE 11, 2014 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON WATER RESOURCES AND

ENVIRONMENT, 

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE, 

Washington, DC. 

The subcommittee met, pursuant to call, at 10:05 a.m., in Room 

2167, Rayburn House Office Building, Hon. Bob Gibbs (Chairman 

of the subcommittee) presiding. 

Mr. GIBBS. The Subcommittee on Water Resources and Environment of the Committee on Transportation and Infrastructure will 

come to order. 

Today we are having a hearing on the impacts of a proposed rule 

by the U.S. EPA and the Army Corps of Engineers on waters of the 

United States. 

A couple housekeeping issues here first. We have received numerous requests for written testimony to be submitted to the 

record. I ask for unanimous consent that all written testimony be 

included and the hearing record be kept open for 30 days after this 

hearing in order to accept these and other submissions of written 

testimony. 

Any objection? Hearing none, so ordered. 

Welcome to our first panel. After a couple of opening statements, 

we have the Deputy Administrator of the U.S. EPA and the Assistant Secretary of the Army for Civil Works, Assistant Secretary 

Darcy. 

Then after the first panel we will have a second panel of six individuals representing various Government entities and associations 

and the challenges that they see with the proposed rule and the 

impacts. 

I yield myself time here to provide an opening statement. 

First of all, I would again like to welcome everybody to the hearing today on the potential impacts of proposed changes to the 

Clean Water Act Jurisdiction Rule, which aims to redefine the term 

‘‘waters of the United States.’’ 

On April 21st of this year, the EPA and the Army Corps of Engineers published a proposed rule in the Federal Register that, according to the agencies, would clarify the scope of the Federal jurisdiction under the Clean Water Act. After reviewing the proposed 

2 

rule, I have serious concerns about the rule and the process the 

agencies are following to develop it. 

Since 1972, the Clean Water Act has been instrumental in dramatically improving the quality of our Nation’s waters. Fundamentally, to that progress, it has been the Federal-State partnership 

which recognizes that not all waters need to be subject to Federal 

jurisdiction, and that the States should have the primary responsibility of regulating waters within their individual boundaries. 

However, I am concerned that this rule will undermine the Federal-State partnership and erode State authority by granting 

sweeping new Federal jurisdiction to waters never intended for regulation under the Clean Water Act, including ditches, manmade 

ponds, flood plains, riparian areas and seasonally wet areas. 

In promoting this rule, the agencies are implying to the public 

that massive amounts of wetlands and stream miles are not being 

protected by the States, and that this rule which will essentially 

Federalize all waters is needed to save them. However, nothing is 

further from the truth. States care about and protect our waters. 

I also am concerned how the proposed rule misconstrues and manipulates the legal standards announced in their SWANCC and 

Rapanos Supreme Court cases, effectively turning those cases that 

placed limits in Clean Water Act jurisdiction into Federal justifications for the agencies to expand their assertion of Federal authority 

over all waters nationally. 

The agencies have had an opportunity to develop clear and reasonable bright line rules on what is jurisdictional versus not, but 

they instead chose to write many of the provisions in the proposed 

rule vaguely, in order to give Federal regulators substantial discretion to claim Federal jurisdiction over almost any water or wet 

area. This is dangerous, because this vagueness will leave the regulated community without any clarity and certainty as to their regulatory status and will leave them exposed to citizens’ lawsuits. 

In addition, since many of these jurisdictional decisions will be 

made on a case-by-case basis, as they have stated, and this will 

give the Federal regulators free reign to find jurisdiction, this rule, 

in essence, will establish a presumption that all waters are jurisdictional. Thus, the burden of proving otherwise will shift to property owners and others in the regulated community. 

This rule sets a very high bar for the regulated community to 

overcome. Nevertheless, the agencies continue to claim that no new 

waters will be covered by the rulemaking. The agencies cannot, 

through guidance or rule, change the scope and meaning of the 

Clean Water Act as they are trying to do here. I also am troubled 

that the sequence and timing of the actions of the agencies that 

have been taken to develop this rule are undermining the credibility of the rule and the process to develop it. 

First, instead of initiating a rulemaking process by soliciting 

input from and developing consensus with the general public, scientific communities, the Federal and State resources agencies on 

how to identify the appropriate scope of jurisdiction, the agencies 

rushed ahead on their own and developed the draft guidance that 

would by the agencies’ own admission increase significantly the 

scope of the Clean Water Act’s jurisdiction over more waters and 

more provisions of the act. 

3 

Then after facing substantial bipartisan opposition to the expansive new guidance, the Agency proceeded ahead again on their own 

with a rulemaking that is simply based on the expansive guidance. 

And to hide the inadequacies of the rulemaking process that the 

agencies have embarked on, EPA decided to develop a so-called scientific study that is supposed to provide a basis for determining the 

reach of Federal jurisdiction on the Clean Water Act. 

It is disturbing that the EPA intentionally precluded from the 

study a review, and discussion of the scientific concepts that are 

highly relevant to determining which waters should be subject to 

the Clean Water Act coverage. The interconnectedness of the 

science and the policy issue here warrants rigorous, scientific peer 

review prior to the ruling’s crafting. However, instead of waiting 

until the science study was completed, the agencies wrote the rule 

long before the study’s report was peer reviewed and finalized. 

The Agency also took steps to hide the regulatory impacts of the 

rulemaking by preparing a fraud economic analysis that did not 

comprehensively assess all the cost and benefits. This is very troubling because this rule, if not carefully crafted, will have sweeping 

economic and regulatory implications for the entire Nation, by impacting nearly all sectors of the economy, threatening jobs, increasing compliance costs, restricting the rights of landowners, inviting 

costly litigation and undermining the ability of States and local 

governments to make decisions about their lands and waters. Regulations on the Nation’s waters can and must be done in a manner 

that responsibly protects the environment without unnecessary and 

costly expansion of the Federal Government. 

Finally, I am pleased to hear the agencies have just announced 

a 91-day extension of the public comment period of the proposed 

rule. However, the agencies should extend the comment period on 

the proposed rule until after the EPA Science Advisory Board has 

completed its review of the science study and the study’s report is 

thoroughly vetted to ensure that any final rule is based on the final 

peer reviewed report. 

I look forward to that testimony from our witnesses today, and 

I would recognize Chairman Shuster of the Transportation and Infrastructure Committee for any statement or comments he may 

have. 

Mr. SHUSTER. Thank you, Mr. Chairman. 

The President’s public proposed rule, which of course Mr. Gibbs 

did a great job of going through it, will dramatically extend the 

reach of the Federal Government when it comes to regulating 

ponds, ditches and wet areas and I don’t believe anybody is going 

to dispute that. I mean, we may attempt to hear that today, but 

that is what is going to happen. 

But this is another example of this administration seeking to use 

executive action, brute force by bypassing Congress, ignoring Supreme Court rulings of the past. Unilaterally broadening the scope 

of the Clean Water Act and the Federal Government’s reach into 

everyday lives, will adversely effect the Nation’s economy, threaten 

jobs, invite costly litigation and restrict the rights of landowners, 

States and local governments to make decisions about their own 

lands. 

4 

This massive Federal jurisdictional grab was the subject of failed 

legislation in the 110th and 111th Congress and I know my colleagues over there were in the majority at the time, and I hope we 

can join together to fight back on this. Because once again, this is 

going to be Congress seeding power to the executive branch, and 

if we do that, if we allow this to go forward, we will never get that 

back and I don’t care if it is a Republican President or a Democratic President, we give it up and they will never give it back to 

us. 

So this is a fight we need to have, and we need to win. In the 

110th and 111th Congress, it was strong bipartisan support to prevent those bills from moving forward, and as I said, the administration is now doing an end around Congress to try to gain that 

Federal power expansion through this rulemaking. The rule supposedly aims at clarifying water bodies subject to Federal jurisdiction under the Clean Water Act, but as I said, I am concerned that 

there is serious flaws in this rule and the executive branch will 

take power away from the Congress. 

Twice this Supreme Court has told the Agency that there are 

limits to the Federal jurisdiction under the Clean Water Act and 

they had gone too far in asserting their authority. Now the administration appears to be cherry-picking those Supreme Court rulings, 

picking out language in attempt to gain this expanded authority, 

rather than heeding the directive of the Court. 

It is the responsibility of Congress, not the administration, to divide the scope of the jurisdiction under the Clean Water Act. This 

rule will have sweeping economic regulatory implications for the 

entire Nation, and I believe that the agencies will be better off correcting the deficiencies in this rulemaking and develop a rule that 

is credible, reasonable and consistent with the law. 

Regulation of our Nation’s waters must be done in a manner that 

protects the environment without unnecessary and costly expansion of the Federal Government. We can continue to protect our 

waters without unreasonable and burdensome regulations on our 

businesses, farmers and families. 

So, again, I have tremendous concern. This is something that I 

know that those of us on our side of the committee are going to 

fight to make sure this doesn’t move forward and that we as Congress, and I would, again, encourage my Democratic colleagues to 

look at this as a fight between the executive branch and the legislative branch. This is our constitutional duty, and they are going 

to take it away from us. 

And I said to you, if this were a public administration, I would 

be saying the same thing and fighting it just as hard. So I encourage you all to keep an open mind as we go through this and let’s 

fight to keep Congress relevant in this process. 

I yield back. 

Mr. GIBBS. At this time, I recognize the ranking member of the 

full Transportation and Infrastructure Committee, Mr. Rahall. 

Mr. RAHALL. Thank you very much, Mr. Gibbs. I appreciate you 

as chairman holding this hearing, and I appreciate very much our 

witnesses being with us today on both panels. 

This is an excellent opportunity to examine and question the regulations that are pouring out of the Environmental Protection 

5 

Agency. We are told that this latest regulation defining waters of 

the United States, is an attempt to address the muddled mess of 

what waters are subject to the permitting processes of the Clean 

Water Act. 

Certainly, the most recent Supreme Court decisions on the matter have only left the question increasingly murky, opening a legal 

void that is begging to be addressed. Unfortunately, from all that 

I have seen and heard to date, this latest proposed rule has only 

further muddied the waters. I have heard many times from proponents of this rule that the intention in crafting it was to provide 

certainty, so that businesses and individuals before setting off on 

some undertaking would know whether or not they needed to go 

through the lengthy and expensive permitting process. 

On that score, I have to give credit where credit is due. This proposal certainly does provide certainty, the certainty that if you 

want to undertake an activity whatsoever that may involve so 

much as a puddle, you must seek a permit. So I confess, I am terribly frustrated. I represent a State that has been brutally beaten 

up by the barrage of regulations gushing out of the EPA. 

We feel we are under siege from an agency so power hungry that 

it is gobbling up jurisdiction and taking power away from our 

States, away from other Federal agencies, and ultimately, away 

from the people, and any serious person looking at this agency 

would have to question if it has bitten off more than it can chew 

already. 

The EPA likes to cultivate the impression that science and pragmatism govern the day and that it is not swayed by ideology. But 

I see it differently. I see an agency that is so hard over against coal 

that it will gloss over the science in doing so, and if doing so, helps 

to stop the construction of coal-fired power plants. I see an agency 

that is so blinded by an anti-coal philosophy that it will stonewall 

efforts to provide coal-field residents with modern sewer systems 

and safer water. It is an agency that is willing to block construction 

of a major national highway at huge savings to the American taxpayers if it would involve the mining of a little coal. 

This committee is right to view this new proposal with skepticism. We must look candidly and matter of factly at the cost of 

this latest EPA proposal on the waters of the United States and 

its effects on our jobs, on our economy and on the course of our Nation. 

So I thank the chairman for allowing me these opening comments, and I thank him again for having this hearing today. 

Mr. GIBBS. Thank you. 

At this time, I recognize my Ranking Member Bishop for any 

comments he may have. 

Mr. BISHOP. Thank you very much, Mr. Chairman, and thank 

you for holding today’s hearing. 

Let me take a moment to frame out the context of today’s hearing and try to highlight some of the factors that brought us to 

where we are today. The starting point of all of this was Congress’ 

passage of the Clean Water Act in 1972, which was approved by 

a veto override by a 10-to-1 margin over President Nixon’s veto. 

In that law, the Congress broadly defined the scope of the act as 

the navigable waters, meaning the waters of the United States and 

6 

the territorial seas, and directed the agencies before us today to fill 

in the details. For almost 30 years, the agencies’ regulatory definition of those terms were the law of the land and since enactment 

of the Clean Water Act, we have seen dramatic improvement in the 

number of water bodies that are safe for fishing and swimming, up 

from one-third of the Nation’s waters in 1972 to approximately twothirds of the Nation’s waters today. I hope we can all agree that 

is a good thing, and I hope we can also all agree that that improvement would not have happened were it not for the Clean Water 

Act. 

Then in 2001, a stakeholder challenged on the act’s application 

with respect to an Illinois landfill, resulted in the Supreme Court 

questioning the application of these definitions. Later, in 2006, the 

Supreme Court again questioned the application of these rules to 

two wetlands in the State of Michigan. In the latter case, the 

Rapanos case, Chief Justice Roberts wrote that the core and the 

EPA needed to do a better job in defining the scope of the Clean 

Water Act. So if this is, in fact, a conflict between branches of Government, perhaps the conflict is between the judicial branch and 

the executive branch. 

This is something that has been attempted by the last two administrations. The administration of President George W. Bush 

and the current administration. In 2003, the Bush administration 

initiated a public rulemaking to define the term ‘‘waters of the 

United States’’ consistent with the rulings of the Supreme Court as 

well as took public comment on whether other regulatory definitions on the scope of the Clean Water Act jurisdiction also needed 

clarification. 

In response, several outside stakeholders, including some of the 

groups represented here this morning, recommended that the 

Agency used the rulemaking process as a means of providing increased clarity to the, quote, ‘‘hodgepodge of ad hoc and inconsistent jurisdictional theories,’’ closed quote, as well as to define 

other terms in the regulations including such terms as ‘‘tributary’’ 

and ‘‘adjacent.’’ 

The 2003 rulemaking attempt by the agencies never reached its 

conclusion. Following in the footsteps of the Rapanos decision, the 

Federal agencies released two interpretive guidance documents, 

one in 2007 and a second in 2008, the latter of which remains in 

force today. 

Now, let’s fast forward to 2014. The list of stakeholders publicly 

recommending that agencies carry out a rulemaking has expanded 

and now includes groups ranging from the National Wildlife Federation to the Waters Advocacy Coalition. In response, earlier this 

year, the administration initiated its own rulemaking to do just 

that, to clarify the scope of the Clean Water Act consistent with the 

parameters laid down by the Supreme Court over the years. 

Now, I am not naive enough to expect that the various groups 

following this proposed rule would agree on how to clarify the scope 

of the Clean Water Act or where the bright lines of jurisdiction 

should lie. However, I do believe it is reasonable for the agencies 

to be allowed to continue this open process in providing the clarity 

that these stakeholders have demanded over the years. 

7 

If the stakeholders have concerns or recommendations for 

changes to the proposed rule, that is what the public comment period was created for, and I strongly encourage all interested parties 

to utilize this open process to make their views known. However, 

I do not support throwing out the entire rulemaking process simply 

because there is disagreement with the initial draft. 

Going back to the legal state of play. In the past 30 years, the 

Supreme Court has issued three rulings that directly address the 

scope of the Clean Water Act, the Bayview Homes case, the 

SWANCC case and the Rapanos case. Each of these decisions outlined a piece of the puzzle for defining the scope of the Clean Water 

Act. 

In the Bayview Homes case, the justice unanimously agreed that 

certain wetlands fell within the protections of the Clean Water Act. 

In the SWANCC decision, the five-to-four majority of the Court 

ruled that the presence of migratory birds on a water of the United 

States could not be the sole basis for determining jurisdiction. 

Finally, in Rapanos, the Court issued a four-one-four decision 

where four justices lead by Justice Scalia outlined a relatively permanent waters test for determining jurisdiction, while Justice Kennedy established a complimentary test, the so-called significant 

nexus test for determining jurisdiction, and the remaining four justices agreed with the Agency’s current authorities. These three decisions outline the four corners of the Supreme Court’s interpretation of the scope of the Clean Water Act. 

So in my view, the question becomes, how does the April 2014 

proposed rule compare with tests on the Clean Water Act scope as 

outlined by the Supreme Court? This will be the area of questioning that I will focus in on today as this hearing progresses. If 

the stakeholders today suggest a different approach, I welcome 

their input, as well. 

Mr. Chairman, I hope that all involved with today’s hearing will 

use this hearing as a learning experience about what this rulemaking does, and as important, what it does not do. 

I welcome the witnesses here this morning. I look forward to 

your testimony. 

And I yield back. 

Mr. GIBBS. If any other Members have opening statements, they 

can submit their written testimony for the record. 

At this time, we will recognize our panel 1. We have the Honorable Robert Perciasepe, the Deputy Administrator for the United 

States Environmental Protection Agency; and we also have the 

Honorable Jo-Ellen Darcy, who is the Assistant Secretary of the 

Army for Civil Works. 

Mr. Perciasepe, I will recognize you first. The floor is yours. Welcome. 

TESTIMONY OF HON. ROBERT W. PERCIASEPE, DEPUTY ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY; 

AND HON. JO-ELLEN DARCY, ASSISTANT SECRETARY OF THE 

ARMY (CIVIL WORKS) 

Mr. PERCIASEPE. Thank you, Mr. Chairman, and Members, 

Ranking Member, thank you so much for inviting us today. 

Mr. GIBBS. Can you pull your mic up a little bit closer? 

8 

Mr. PERCIASEPE. I apologize. I think we all agree, and I have 

heard this already, that we want clean and safe waters for ourselves, our economy, our environment, our children, our future. I 

also want to express my appreciation to my colleague and friend, 

Assistant Secretary of the Army Jo-Ellen Darcy for her leadership 

and commitment to protecting the Nation’s waters. 

We are undertaking a process to clarify the geographic scope of 

the Clean Water Act and to improve a regulation that has been in 

place for nearly 30 years. The proposed rule will help provide families, manufacturers, farmers, sportsmen, energy producers and the 

American people with the clean water they depend on. 

The written testimony that I have submitted will provide more 

details about the proposed rule, including the Agency’s goal to respond to the request from stakeholders across the country to make 

a process of identifying waters protected under the Clean Water 

Act easier to understand, more predictable and more consistent 

with the law and peer-reviewed science. We believe this rulemaking will minimize delays, costs, and improve predictability, 

clarity, consistency for everyone who may or may not need a Clean 

Water Act permit. 

I will focus my opening remarks this morning on some of the 

misinformation that exists regarding the potential effects of this 

rule, and I am concerned that incorrect information may have the 

effect of distracting the attention from the legal policy and scientific underpinnings of the proposed rule. 

The agencies are meeting with Americans across the country including farmers, energy companies, small business, State and local 

governments, sportsmen, developers and many others to solicit 

their comments, because, remember, this is a proposal, and to answer their questions about it. 

We are hearing from a public directly and personally about how 

to improve the rule and how to make it most fair, flexible and effective for everyone, in addition to providing valuable insights to our 

discussions are also revealing an unfortunate pattern of misinformation. 

For example, I have heard in my discussions with stakeholders 

that this regulation will require farmers to get permits for their 

cows to cross a stream; that this legislation will make dry washes 

that carry water only once in a thousand years protected under the 

Clean Water Act; that this rule will make entire flood plains subject to the Clean Water Act jurisdiction, and I can tell the committee that categorically, none of these are correct statements. 

In contrast, here are some of the examples about what the proposed rule does and does not do. In adherence with the Supreme 

Court, it would reduce the scope of waters protected under the 

Clean Water Act compared to the existing regulations on the book. 

It would not assert jurisdiction over any type of waters not previously protected over the past 40 years. 

The rule does not apply to lands, whole flood plains, backyards, 

wet spots or puddles. It will increase transparency, consistency and 

predictability in making jurisdictional determinations and reduce 

existing cost confusion and delays. It represents the best peer-reviewed science about functions and values of the Nation’s waters. 

The agencies will not finalize this rule until the Science Advisory 

9 

Board completes its review, which you have mentioned, Mr. Chairman. 

It would reduce Clean Water Act jurisdiction over ditches compared to the previous 2008 guidance. The rule will maintain all existing Clean Water Act exemptions and exclusions. In addition, the 

agencies also identify agricultural conservation practices conducted 

in waters that do not require a 404 permit. We want to encourage 

conservation work on agricultural land. 

We have published a proposed rule not a final rule. We are currently taking public comment, and we have extended the comment 

period, as you have already heard. We expect a tremendous 

amount of public response from a broad range of interests, and we 

are actively working to meet with a wide range of stakeholders. 

This outreach has already been tremendously helpful to us in understanding the concerns and discussing effective solutions. We are 

going to continue to work hard and listen more effectively and 

learn more and better understand. 

Let me just conclude by emphasizing my strong belief that what 

is good for the environment and clean water is also good for farmers, ranchers, foresters, manufacturers, homebuilders, small businesses, communities, energy producers and all Americans. 

We look forward to working with all stakeholders to reflect this 

important goal in the final rule in defining geographic role of the 

Clean Water Act. 

And I thank you, and I look forward to your questions. 

Mr. GIBBS. Assistant Secretary Darcy, welcome. The floor is 

yours. 

Ms. DARCY. Thank you. 

Good morning, Chairman Gibbs, Ranking Member Bishop and 

other members of the committee. 

Thank you for this opportunity today to discuss the proposed rule 

clarifying the definition of waters of the United States under the 

Clean Water Act. Once implemented, this rule will enable the 

Army Corps of Engineers to more effectively and efficiently protect 

our Nation’s aquatic resources while enabling appropriate development proposals to move forward. 

Clean Water Act jurisdiction applies to ‘‘navigable waters,’’ defined in the statute as ‘‘waters of the United States including the 

territorial seas.’’ Our 1986 regulations define ‘‘waters of the United 

States’’ as traditional navigable waters, interstate waters, all other 

waters that could affect interstate or foreign commerce, impoundments of the waters in the United States, tributaries, the territorial seas and adjacent wetlands. 

The U.S. Supreme Court has addressed the scope of waters regulated under the Clean Water Act in three occasions, specifically the 

Riverside Bayview Homes case of 1985, the SWANCC decision in 

2001, and the Rapanos decision in 2006. The Court’s decisions significantly altered the regulatory landscape, and although the Corps 

and the Environmental Protection Agency have done a fine job adjusting their regulatory activities in response, a critical need exists 

for this rulemaking. 

We receive many comments from Congress, from organizations, 

from stakeholders, from the public, urging the agencies to pursue 

notice and comment rulemaking, including Chief Justice Roberts 

10 

himself, and the Rapanos decision strongly recommended that the 

agencies initiate a rulemaking. 

We have been working for several years now to develop a sciencebased rule that will provide the clarity needed, the transparency, 

as well as the efficiency. Under the proposed rule, the process of 

identifying waters of the United States will become less complicated and more efficient as to which waters are and which waters are not jurisdictional. Our proposal does not assert jurisdiction 

over any new category of waters; however, we do expect that there 

will be a small increase in jurisdiction over the existing 2008 guidance, but the extent of jurisdiction is less inclusive than the 1986 

regulations. 

Our decision to propose to regulate by rule, all tributaries and 

adjacent waters and wetlands is scientifically based and is consistent with our understanding that these waters, alone or in combination with similarly situated waters in the watershed, have a 

significant nexus to jurisdictional waters. Other waters may be determined jurisdictional only upon a case-specific determination that 

a significant nexus exists between the jurisdictional water. This is 

consistent with our current practice. 

The proposed rule will also exclude certain waters and erosional 

features. Waste treatment systems and prior converted croplands 

remain excluded. We anticipate receiving meaningful comments on 

the proposed rule, and as you know, the comment period has just 

been extended until October 20 of this year. 

Mr. Chairman, and members of the committee, I am happy to answer your questions and look forward to this hearing. Thank you. 

Mr. GIBBS. At this time, Mr. Chairman of the committee, Bill 

Shuster, do you have—OK. He yields to former chairman Mr. 

Young from Alaska. 

Mr. YOUNG. Thank you, Mr. Chairman. I want to thank the witnesses. 

I have a personal feeling about the EPA. I want you to know 

what you have done in Alaska to me is a disgrace. Without any 

input from the State of Alaska, any cooperation with the State of 

Alaska, any understanding of the effect upon individuals in the 

State of Alaska, preempting a State-owned property without consulting, total arrogance on part of another agency. 

The second thing, Mr. Perciasepe, is the influence you have, Ms. 

Darcy, on your agency where we just now have a Corps request of 

a new way to allow family mining to take place, and I have information it was submitted by the Corps for permitting because of the 

EPA. That is not right. You are a separate agency, you should have 

the ability to make decisions based upon other than, I call, a policy 

of an EPA that doesn’t understand that there is economics, there 

is a human life that is involved, and that is the last of my statement. 

But I would like to just ask the question to the EPA. In this bill, 

you indicated costs were underestimated. Are you doing anything 

about that? Are you looking at the cost of this legislation upon the 

economy and upon the individual States? 

Mr. PERCIASEPE. Thank you for the question. We have a draft 

economic analysis that accompanies the proposal. Our draft ecoVerDate Aug 31 2005 12:12 Jan 29, 2015 Jkt 000000 PO 00000 Frm 00024 Fmt 6633 Sfmt 6633 P:\HEARINGS\113\WR\6-11-1~1\88239.TXT JEAN
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nomic analysis does identify the costs, and it does identify the benefits that we anticipate—— 

Mr. YOUNG. But is it true you underestimated the cost in this 

proposal? 

Mr. PERCIASEPE. We do not believe we have underestimated the 

cost. 

Mr. YOUNG. So you are not doing anything about it? 

Mr. PERCIASEPE. Well, it is a proposal so we are taking comment 

on the economic analysis, and if we do get comment that demonstrates any modification or improvement that we can make on it, 

we will obviously take that into account before we do any final—— 

Mr. YOUNG. Did you consult with any of the States involved or 

any of the States in the United States on this proposal? 

Mr. PERCIASEPE. We have had discussions, ongoing discussions 

with the States, and we continue to have ongoing discussions. 

Mr. YOUNG. Have you found one State that supported this proposal? 

Mr. PERCIASEPE. I don’t have a polling of the States. 

Mr. YOUNG. So you really didn’t consult. Because I don’t believe 

there is one of the 50 States that support this proposal. 

Mr. PERCIASEPE. I couldn’t say that one way or the other. 

Mr. YOUNG. Well, you are the Agency. You should know that if 

you are consulting them. There should be somebody, one State saying this is a grand idea, and if you don’t know, that means you 

didn’t consult with them. 

Mr. PERCIASEPE. We did consult with them. 

Mr. YOUNG. Well, no, because you didn’t do it well enough. You 

didn’t write it so the States could accept it. You got 50 States that 

say they don’t like this program. Fifty States sir, and you represent 

50 States supposedly as an agency. 

Mr. PERCIASEPE. I don’t believe 50 States have said that, sir. 

Mr. YOUNG. Oh, well, do you believe they said in one State? Give 

me one State. 

Mr. PERCIASEPE. The way we—— 

Mr. YOUNG. One State. 

Mr. PERCIASEPE. I am sure they will—— 

Mr. YOUNG. You have not one State. 

Mr. PERCIASEPE. I don’t have one State? 

Mr. YOUNG. You have not one State that supports this proposal? 

Mr. PERCIASEPE. All right. You won’t let me answer, so go ahead. 

Mr. YOUNG. No. I am asking you a question. You can’t do it? 

Mr. PERCIASEPE. All right. Well, you have to stop talking so I can 

answer. 

Mr. YOUNG. You can’t do it. You can’t do it. Now, that is what 

bothers me. Now, if I have a private piece of property under the 

Constitution is mine—— 

Mr. PERCIASEPE. Yes, correct. 

Mr. YOUNG [continuing]. And I have water on it, can you under 

this rule go in and tell me I cannot make a difference in the water 

that is on my property? I cannot drain my pond under this rule? 

Mr. PERCIASEPE. If those waters are jurisdictional under the 

Clean Water Act, you would have to get a permit to do it. 

12 

Mr. YOUNG. The question is very simple. I have a pond of water. 

It is on my private land. It is my water. Is that not true, it is my 

water? 

Mr. PERCIASEPE. It is on your land. 

Mr. YOUNG. Is it my water? 

Mr. PERCIASEPE. That varies from State to State on water rights. 

Mr. YOUNG. I ask you as Federal. State has not proposed this. 

It is my water. It is on my property, and I want to drain it. Can 

I do that without your permission? 

Mr. PERCIASEPE. The United States Congress has enacted a law 

that requires a permit to do work in waters that are jurisdictional 

under the Clean Water Act. So if it is, and I have no idea whether 

it is or not because I don’t know which water you are talking about, 

it would require a permit. 

Mr. YOUNG. It is my property. This is my ranch. 

Mr. PERCIASEPE. It would require a permit if it is jurisdictional. 

If it isn’t jurisdictional, you won’t need a permit. 

Mr. YOUNG. Mr. Chairman, if I say so in the committee, this is 

an example, under the Constitution you have a right on your property to protect your property. If I want to drain it because I have 

got, what do you call these fish that walk across the water on the 

land and get in the other area and I want to kill those fish and 

I can do it by draining it, and now I have to get a permit from you 

and your agency says, no, you can’t do it because we have not given 

you a permit. You are taking from my right to run my land. That 

is unconstitutional. And you, both of you swore to uphold the Constitution. 

Mr. PERCIASEPE. That is correct. 

Mr. YOUNG. And you are not doing it if I can’t run my land and 

my water. Mr. Chairman, that is an example of giving the overstepping of this Government. I have watched this for 81 years. We 

have a Government today, Mr. Chairman, that is taking away the 

right of individual’s rights, and I say to the Agency, no. That people are going to stand up one of these days and say, no more. That 

is enough. You are not going to go against the Constitution. And 

my time is done. Let the chairman do it. Let everybody else start 

asking these questions. 

Mr. GIBBS. Thank you. Mr. Rahall. 

Mr. RAHALL. Thank you, Mr. Chairman. I will try to be a little 

tamer. 

Mr. Deputy Administrator, as we all know, the coal industry, 

coal-mining jobs, crucial, vital to my home State. It is our livelihood. Coal literally keeps the lights on, and when we have 

downturns for a variety of factors or a variety of reasons contribute 

to those downturns in the industry as we are in now. There are 

layoffs, layoffs of law enforcement personnel by county commissioners who cannot find the funding to keep officers on the street 

or even keep the lights on in their courthouses or keep staff employed. 

So there is a lot of families watching these proposals in my district as they did the recent proposals announced last week and they 

are worried about their jobs. They are receiving warn notices as we 

speak. Again, there is a variety of factors for this downturn. I recognize that. Everybody recognizes that. 

13 

But in these downturns in the past, we have always felt the Government is trying to help us get out of these downturns in the coal 

industry. That is not the feeling now. As a matter of fact, just the 

opposite. I think our Government is trying to keep us in a downturn and trying to finish us off during this current down cycle. 

So, you know, as I say, everybody is worried about everything 

that comes out of EPA in the district I am honored to represent. 

Several years ago the agencies went through an extended exercise 

to align various definitions of fill material that has a lot in the industry concerned. My question to you would be, is the EPA planning now to revisit that and redefine what is fill material? 

Mr. PERCIASEPE. Congressman, we absolutely have no plans to 

revisit that. 

Mr. RAHALL. OK. Let me ask you another question. On the issue 

of properly permitted ditches on mine sites that are in place to address stormwater runoff, is the rule expected to capture these onsite draining systems? 

Mr. PERCIASEPE. Looking specifically, for instance, at a permitted 

coal mining site, we would expect that the waste treatment exclusion in the rule that we are continuing in this same way it has always been there, we will continue, which covers many of those. Any 

stormwater ditches or ponds that were constructed to convey or 

deal with stormwater control on mining sites would not be covered, 

and we are not changing the water treatment or the waste treatment system exclusion rule, the imposing of the rule. 

So with those clarifying points, which are reinforcing the fact 

that the answer is no, that we would not have jurisdiction over 

those treatment facilities that are on a permitted mine site. 

Mr. RAHALL. So the industry could continue to rely upon your 

longstanding Agency interpretations—— 

Mr. PERCIASEPE. Yeah, exactly. 

Mr. RAHALL [continuing]. Regarding these uses? 

Mr. GIBBS. Madam Secretary. 

Ms. DARCY. Yes, those exclusions will stay in place under this 

proposed rule. 

Mr. RAHALL. OK. Thank you. 

I yield back, Mr. Chairman. 

Mr. GIBBS. I have some questions. 

First of all, you are absolutely right. We need to make sure we 

bring certainty to our businesses and our farmers and everybody 

out there, but there is so much vagueness, and when I hear your 

testimony, and I actually read the testimony of the next panel, I 

hope you are able to stay around to hear the next panel since you 

are the regulators and see what their concerns are. So I really 

would appreciate if you are able to stay around and hear their testimony because they are really concerned about that, too, and they 

have a little different take on that. 

First of all, some of the things you, Mr. Perciasepe said, I hope 

that you can put that in writing because sometimes saying things, 

we like to see it down in writing for the official record. 

But Ms. Darcy, we are talking about vagueness. In your testimony, it says, ‘‘The agencies proposed that waters outside of the riparian and flood plain areas would be jurisdictional only if they 

have confined surface or shallow subsurface connection to the tradiVerDate Aug 31 2005 12:12 Jan 29, 2015 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6633 P:\HEARINGS\113\WR\6-11-1~1\88239.TXT JEAN
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tional navigable waters,’’ and so on. Would you please explain to 

me what you mean by the connectivity or the surface or a shallow 

subsurface connection? Because you say you are not expanding the 

scope of your jurisdiction, but I don’t know what that means. 

Ms. DARCY. Congressman, what it means is that if there is a connection between that and the flood plain, and if the flood plain is 

a navigable water, then a significant nexus determination would 

need to be made. 

Mr. GIBBS. Any connection or significant connection? I don’t 

mean to de minimis anything, but—— 

Ms. DARCY. No, significant connection, and we define significant 

nexus in the rule as to how significant that would be. It has to be 

able to impact—— 

Mr. GIBBS. OK. Would you explain to me how you define significant? 

Ms. DARCY. Pardon me? 

Mr. GIBBS. Would you explain to me how you define significant? 

Ms. DARCY. I will read you the definition, if that will help. 

‘‘Significant nexus means that a water, including a wetland, either alone or in combination with other similarly situated waters 

in the region in that watershed significantly affects the chemical, 

physical or biological integrity of a water identified as a jurisdictional water.’’ 

Mr. GIBBS. So for example out West, I have been out West, I 

have seen areas where they might get water flowing through an 

area during a once-in-a-year rain event and you know, it is dry 

beds, would that be significant? 

Ms. DARCY. That, again, would be an individual case-by-case determination depending on the circumstances in that area. For example, some of those kinds of waters, if they are determined to be 

a tributary, which is defined as a water body that has a bed, a 

bank and ordinary high water mark and—— 

Mr. GIBBS. So let’s say in my farm last month I had a washout, 

and I went out there and I fixed it. It was probably 200 feet long. 

It washed out. It was close to 2 feet deep, 2 feet wide. You know, 

I had to fill that in, and I planted grass and tried to do the right 

thing to fix that. 

Now, if you came out, the Corps came out, would they say that 

was a water bed? Or would I be able to fix that without getting a 

permit? 

Ms. DARCY. Congressman, what you have described would be an 

erosional feature. That would not be subject to a jurisdictional determination. 

Mr. GIBBS. OK. I read through the testimony of the next panel. 

There is a lot of concern that the States haven’t been consulted, 

local governments haven’t been consulted, so I just wanted to make 

you aware of that, Mr. Perciasepe, that there is concern about that. 

Also there is a huge concern of local governments, road ditches, 

because you talked about, I think you used significant, the bed. So 

I think you could define that as a ditch now on the new definition 

as a tributary. Does that mean when they are doing a dredge or 

clean out the ditch that they are going to have to get a permit? 

15 

Ms. DARCY. Congressman, for the first time, we are excluding in 

this rule ditches and if you would like, I can give you the two examples of what kinds of ditches. 

Mr. GIBBS. Well, I guess there is some controversy if you really 

are or not, and I think the trust factor here, we have seen some 

of the things that the EPA has done in the past with the revocation 

of permits and veto of permits and preemption of permits that I 

think there is a high level of distrust out there, and I am really 

concerned about how we move forward on that area. 

OK. I am just about out of time. I think I will turn it over to 

Mr. Bishop. 

Mr. BISHOP. Thank you, Mr. Chairman. 

Assistant Secretary Darcy, first off, thank you for reading the 

definition of significant nexus. Am I correct in understanding that 

the language in the significant nexus definition as included in the 

proposed rule, is lifted almost verbatim from Justice Kennedy’s ruling in the Rapanos case? 

Ms. DARCY. I believe that to be the case and also, I would just 

like to reiterate that the definitions are also part of what is being 

proposed in this rule as being open for public comment. 

Mr. BISHOP. OK. But you are staying wholly within the confines 

of Justice Kennedy’s definition of significant nexus in this proposed 

rule; is that correct? 

Ms. DARCY. That is correct. 

Mr. BISHOP. And is it also correct that Justice Scalia in his definition of relatively permanent connection to traditional navigable 

waters suggested a hydrological connection in his ruling, and is it 

not the case that your proposed definition adheres to Justice 

Scalia’s definition; am I right about that? 

Ms. DARCY. That is correct. 

Mr. BISHOP. Thank you. Now, let me ask you this, there are 

these two rules or two tests, the relatively significant nexus tests 

and the relatively permanent connection test. Is there any way in 

which any aspect of your proposed rule extends jurisdiction beyond 

the four corners of those two definitions? 

Ms. DARCY. No. 

Mr. BISHOP. Mr. Perciasepe, do you agree with that? 

Mr. PERCIASEPE. I do, and, in fact, I would just augment slightly 

that in addition to the definition that the colloquy just discussed 

here, the discussion on the words in the Supreme Court Judges, we 

actually are using this rulemaking to, by rule, exclude certain 

things. So even with that test, some, notwithstanding if they would 

pass that test or not, they are excluded. 

Things like, to go back to the Chair’s question, ditches that are 

excavated wholly in uplands, that drain only in uplands and that 

have less than perennial flow, which is virtually most of the highway drainage ditches in the country. You know, they are not draining a wetland. They are not draining a stream. They are just draining dry land when it rains. Those are excluded in the definition of 

the rule. So I just wanted to add that to Assistant Secretary 

Darcy’s comment. 

Mr. BISHOP. But just to be clear, this has been described as a 

power grab. It has been described in other ways somewhat even 

more pejorative than that. Your definitions are definitions that hue 

16 

precisely to the definitions suggested by the two Supreme Court 

rulings? 

Ms. DARCY. That is correct. 

Mr. BISHOP. Thank you. Let me move to another area. 

The operative guidance that we have right now is the 2008 guidance. The 2008 guidance asserts jurisdiction over dry land ditches 

that flow less than year-round, yet your proposal limits jurisdiction 

by requiring water year-round. Am I correct, therefore, in determining that jurisdiction over fewer ditches would be asserted under 

your ruling than is currently the case today? 

Ms. DARCY. That is correct. 

Mr. BISHOP. OK. So it limits, rather than expands the scope of 

the Clean Water Act in that particular case. Am I right about that? 

Ms. DARCY. That is correct. 

Mr. BISHOP. All right. Let me just ask one more question. Are 

there any examples where the proposed rule expands the definition 

of jurisdictional waters that is currently the case under the 2008 

guidance? 

Ms. DARCY. No. 

Mr. BISHOP. Mr. Perciasepe, do you agree with that? 

Mr. PERCIASEPE. I do. There is no expansion. 

Mr. BISHOP. And does it, in fact, limit some of the jurisdiction? 

Mr. PERCIASEPE. It does. In fact, some of those limitations, as I 

mentioned, have to be done through rulemaking. 

Mr. BISHOP. OK. So those who are proposing that we prohibit the 

use of Federal funds to allow this rulemaking to go forward or to 

enforce that rule, this might be a falling under the heading of be 

careful what you hope for because the 2008 guidance is more restrictive than what this rule is proposing? Is that a correct interpretation? 

Ms. DARCY. In some instances, that is correct. 

Mr. BISHOP. Mr. Perciasepe, do you agree with that? 

Mr. PERCIASEPE. I do. 

Mr. BISHOP. OK. 

Thank you very much. I will yield back. 

Mr. GIBBS. Mr. Shuster. 

Mr. SHUSTER. That you, Mr. Chairman. 

You know, some words have been used here: ‘‘Flexibility.’’ Flexibility is a great thing when both parties get to use flexibility. My 

concern is that when you talk about flexibility, the stakeholders 

seem to never get the flexibility to come under a rule and be able 

to mitigate the problem themselves in a way that it would work. 

What typically happens that I see is when you talk about flexibility, it allows the EPA and the Corps the flexibility in different 

districts, in different regional offices across the country to interpret 

these things differently. 

And we see that in Pennsylvania on the Marcellus gas play 

where the Corps office in Baltimore is treating Pennsylvania and 

wherever else, the other places it has jurisdiction differently than 

what happens in Arkansas and other places in this country because 

the local office is interpreting these rules and regulations in a different way. 

For instance, also the word ‘‘significant.’’ Significant, what it 

means to me and what it means to you is different. I am not a sciVerDate Aug 31 2005 12:12 Jan 29, 2015 Jkt 000000 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 P:\HEARINGS\113\WR\6-11-1~1\88239.TXT JEAN
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entist. I am not a geologist. You don’t have specifics in there as to 

really what significant is. It requires a measurement of some sort, 

then I can understand it, or measurement that a farmer or a developer can understand. 

So you have got all these nice terms in here but when you look 

at how you have made these definitions, tributary, adjacent, flood 

plain, neighboring waters, they are very vague to my understanding and so when we talk to the stakeholders today and have 

been talking to them, they are very vague to them. 

So can you tell us now what waters would definitely no longer 

be regulated by the Federal Government under this proposed rule? 

Ms. DARCY. We have a series of exclusions that are defined here, 

and if you would like, I can read those to you. It is under section 

B1 of the definition of the rule. It is, waters that are not going to 

be considered are wastewater treatments, prior converted cropland, 

ditches that are excavated wholly in uplands, ditches that do not 

contribute flow either directly or through other waters to a water, 

and artificially irrigated areas that would revert to uplands, artificial lakes. This whole list. Do you want me to continue? 

Mr. SHUSTER. So if the water somehow seeps into a body of water 

that is flowing because of a flood or something occurring, some extreme weather event occurs, will that enable the regulators to 

change the definition of that ditch or that pond to fall under the 

Federal jurisdiction? 

Ms. DARCY. Congressman, if the water body contributes to the 

flow of a tributary, then that would be considered a jurisdictional—— 

Mr. SHUSTER. So we get a 100-year storm and floods with typically irrigated field and a diversion ditch on a farm which never 

really, it never flowed into the river that is close by. If that event 

occurred, then, would that come under Federal regulation? 

Ms. DARCY. Congressman, it sounds as though you are describing 

a flood event and the runoff from that flood event, and that kind 

of runoff would not be considered a jurisdictional water of the 

United States. 

Mr. SHUSTER. When you talk about waste treatment—yes, sir. 

Mr. PERCIASEPE. Just to add in, because I think this gets at some 

of the potential need for continued dialogue. We are using the term 

‘‘flood plain’’ to try to get at the issue of adjacency which has been 

in a number of the Supreme Court cases. 

But just because it is a flood plain doesn’t mean it is jurisdictional. It still would have to be a water in the flood plain, you 

know, standing water or a wetland with the hydric soils and the 

vegetation or an actual running stream through a flood plain area. 

But the flood plain is an area that can help identify, and that is 

what we are proposing to take comment on that it is adjacent to 

the other traditional water. 

So, I want to be really clear that the entire flood plain, which 

may flood, is not jurisdictional and, in fact, I want to remind that, 

agriculture is exempt from having to get permits in that area regardless of whether it has got a wetland in part of it. 

So I wanted to just add to the Assistant Secretary’s comments on 

that. 

18 

Mr. SHUSTER. And, of great concern to me, because I have seen 

it happen firsthand in Pennsylvania, where I just talked about the 

Corps, we have a, I believe it is an EPA field office up in State College Pennsylvania, that is staffed with, well, used to be staff with, 

I don’t know who is there today presently, with people that are extreme environmentalists and they will interpret the law differently 

than the folks in Washington. 

And I said with the Corps what is happening in Baltimore versus 

what they do in Arkansas or other places of the country doesn’t 

conform to what the rule is necessarily. It is an interpretation, and 

that happens, I think, I am willing to bet that everybody in this 

room has faced that before where the local office, whether it is the 

regional or the district office, is looking at things differently. 

And so how can you protect the stakeholders against that occurring? 

Mr. PERCIASEPE. Well, I will let Assistant Secretary Darcy answer for the Corps, but we both have regional structures, as you 

point out, and it is important for us to develop consistency and predictability there. That is a high priority for both of us, and we view 

the work we are doing in this rule and when we get it finalized to 

help us provide that consistency and predictability. 

Mr. SHUSTER. Have you experienced that in the EPA where you 

have seen regional directors look at something very, very differently? 

Mr. PERCIASEPE. Well, to the extent that we can practically—I 

mean, there is always difference of opinions in any organization. 

Our objective is always to try to reconcile. 

Mr. SHUSTER. That is my point. What you are trying to do is 

what we always try to do in Washington is a one-size-fits-all, and 

then what you have is you have got differences of opinion and that 

causes tremendous problems for people out there trying to earn a 

living and farm the ground and run their businesses. 

Mr. PERCIASEPE. You have hit the nail on the head of that. We 

have to find a way to have enough predictability and consistency 

so that there isn’t vagaries of different opinions all over the country. But at the same time, we can’t be so constrained, you know, 

in a one-size-fits-all world. 

So what we are trying to do is get that right, so we have definitions here and practice that will be established that can deal with 

the different situations in the country. 

Mr. SHUSTER. Well, and I know I have extended my time, but 

just a final point, because I think Chairman Young made a very 

good point, or a very good question, when he asked you, is there 

one State out there that has said this is really good, we embrace 

it? And I will let you finish answering the question. 

Mr. PERCIASEPE. I am sorry about that before. I really apologize. 

But let me just say draining a pond does not require a permit, just, 

if I could have answered. 

But filling it would require permit under the Federal law. The 

State organizations have been very supportive, you know, the Environmental Council of the States, some of the other water organizations that represent State water. They have been supportive as 

weave been building this, but we have yet to get any specific comments on the rule from States. 

19 

So I can do a polling of them but I haven’t done that polling yet 

because we plan to do significant continued outreach with them between now and when the comment period is over, and I want to 

point out that we treat States differently than normal commenters 

because they are coregulators with EPA. So, we are going to be 

working with them differently, although they will be submitting 

comments. 

Mr. SHUSTER. Again, our DEP in Pennsylvania over the past couple years hasn’t seen eye to eye with the Corps or EPA, and back 

when there was a different administration they saw eye to eye. So 

again, a problem that we are going to face is this rule is going to 

go into place with all these, there are a lot of vague terms in there, 

and what is going to happen is these stakeholders, and we are 

going to have them up next here, talk about the damage it is going 

to cost them. 

And again, to your point about you don’t have to get a permit to 

drain the pond, can you put that in the rule to make sure we are 

clear on that? So when Chairman Young tries to drain his pond he 

doesn’t have to come get a permit. 

Ms. DARCY. I think we can make that more clear. 

Mr. SHUSTER. I yield back. Thank you, Chairman. 

Mr. GIBBS. Mr. Perciasepe, just to make a comment. What we are 

hearing from the State EPAs is that they are concerned because 

they haven’t been consolidated enough in this proposed rule. So a 

point of information. 

Mr. Nolan here, do you have questions? 

Mr. NOLAN. Yes. Thank you. 

Thank you, Mr. Chairman, and thank you to the panel. 

First of all, I would like to respond to my good friend of over 40 

years, Don Young, who is so shy and reticent about expressing an 

opinion. I, too, have a farm, and we have a little pond on it that 

my wife and I created. It is quite beautiful, right alongside the 

house. I suspect that would not be covered by jurisdiction and the 

courts have ruled that we don’t have unlimited control over those 

waters that are navigable. 

So we have a river, flows through my farm, as well, and the 

courts have ruled that we have no right to dump toxic substances 

and other things into that river that would be harmful to people 

downstream. So with all due respect, to my good friend, there are 

some constitutional restrictions and limitations. 

As to the proposed rule, I will reserve final judgment until I have 

heard all the facts, but I do want to applaud you to the extent that 

you do try to give us some predictability and some consistency 

here. That would be very, very helpful to many parties. I have a 

couple of quick questions. I will try to be quick with them and 

please be quick with your answers so I can get as many of them 

in as possible. 

First of all, is I have a company that is talking about investing 

$3 billion in my congressional district, and my question of you is, 

how do you think that the jurisdiction that is proposed in this rule, 

combined, you know, combined with EPA’s retroactive and preemptive 404 authority and action, how do you think that impacts a 

company looking at making a rather substantial investment? 

20 

Mr. PERCIASEPE. Well, I don’t know if what they are proposing 

is going to impact water or not. 

Mr. NOLAN. Pretty hard to do anything in Minnesota without impacting water. 

Mr. PERCIASEPE. So I am just going to say at a high level, I think 

the Army Corps of Engineers through the permitting process has 

authorized over 2 million permits and activities under this section 

of law and 13 have been involved with the so-called veto, which is 

essentially EPA designating a section of water that can’t have a 

discharge of the fill into it. So, it is an extremely rare occurrence 

that that gets used, and there is a significant amount of work and 

process that goes on for it. 

So, I would think in the normal realm of activities you are talking about projects that go through the permitting process, they get 

permitted, they may have to do mitigation, that is some of what 

our economic analysis has shown, that there may be some of that. 

But generally speaking, I don’t see that as a deterrent to business. 

Mr. NOLAN. Well, as someone who spent that last 32 years of my 

life in business, I can tell you the prospect of that has a very 

chilling, dampening effect on anyone considering any kind of a substantial investment with regard to the Constitution. It all raises 

the whole question of due process for companies in that kind of a 

situation. 

My next question is with regard with the trail systems, snow 

mobilers, cross-country skiers, snow shoers and on frozen water 

ways and wetlands that provide some multiuse recreational opportunities for individuals. How would these regulations impact them? 

Ms. DARCY. I don’t believe the proposed rule would change the 

current status of what would be required under the current law for 

those. 

Mr. NOLAN. Is that your understanding, as well? 

Farmers continue to ask, who is ultimately in charge of enforcement? The EPA? Army Corps? Who is going to do the enforcement 

here? 

Ms. DARCY. If someone has a Department of the Army permit for 

an action and is in violation of that permit, it would be the Army 

Corps of Engineers’ responsibility to ensure that that permit is 

being undertaken as agreed to, so it would be our responsibility. 

Mr. NOLAN. Well, what if the EPA determines it is part of their 

jurisdiction? I mean, who does the enforcement, then? 

Mr. PERCIASEPE. Obviously, these things get very case specific. 

We have somewhere in the vicinity of 30 to 40 cases or so a year 

that we end up getting involved with, as well. 

Mr. NOLAN. Well, what do you do in those cases where, you 

know, the Army Corps has one definition and the Natural Resources Conservation Service has a different definition and you are 

compliant with one and noncompliant with another? I mean, what 

kind of methodologies or matters for resolving this do you have in 

place? 

Ms. DARCY. Could I just explain about the interpretive rule that 

accompanies this proposed rule that deals with the National Conservation Service regulations and practices. 

21 

We are exempting about 56 of those practices from any kind of 

Clean Water Act permitting requirement in the interpretive rule 

that we have put out at the same time as the proposed rule. 

So it would be the Natural Resources Conservation Service and 

those local agents who would be responsible for assuring that the 

practices undertaken by that farmer or silviculture or rancher were 

being complied with. 

Mr. NOLAN. OK. And lastly, what kind of outreach do you have 

planned to help get the word out of what, in fact, all this is and 

isn’t? 

Ms. DARCY. We have conducted a number of conference calls, 

webinars, over 64 to date since the issuing of the proposed rule and 

will plan to continue to do that throughout now. Now that this 

comment period has been extended, we may try to increase those 

outreach efforts between now and then. 

Mr. NOLAN. And then my last question, we heard a lot of questions here about the States, what do you think these actions or how 

they will impact the ability the State and local governments, to exercise their authority with respect to land use management and 

planning? 

Ms. DARCY. These jurisdictional determinations do not impact 

their local authorities other than if they are looking to do any kind 

of development in a water of the United States. They would need 

to look to see whether that water is jurisdictional and what sort 

of permit would be needed by the—— 

Mr. NOLAN. Will they supersede State plans in any manner, 

shape or form? 

Ms. DARCY. Not land planning, no. That is local, planning and 

zoning. 

Mr. NOLAN. OK. 

Thank you, Mr. Chairman. I yield the balance of my time. 

Mr. GIBBS. Mr. Crawford. 

Mr. CRAWFORD. Thank you, Mr. Chairman. 

Assistant Secretary Darcy, you stated earlier in the course of answering one of the questions that one of my colleagues asked in the 

proposal we define, and you have also used personal possessive pronouns. I am a little confused. Whose proposal is this? 

Ms. DARCY. It is the administration’s proposal. 

Mr. CRAWFORD. The administration? 

Ms. DARCY. Yes. 

Mr. CRAWFORD. So have you been working with the administration to develop the proposed rule? 

Ms. DARCY. Yes, EPA and the Corps of Engineers have developed 

this rule together. 

Mr. CRAWFORD. OK. But this is ultimately, this an EPA proposed 

rule, correct? 

Ms. DARCY. No, it is the administration’s rule. 

Mr. CRAWFORD. The administration is proposing now? 

Ms. DARCY. Yes. 

Mr. CRAWFORD. OK. But you have been collaborating with the 

Corps, I mean, with EPA rather? 

Ms. DARCY. Yes, sir. 

Mr. CRAWFORD. OK. We are currently in the public comment period, correct? 

22 

Ms. DARCY. Yes. 

Mr. CRAWFORD. Have you submitted public comment? 

Ms. DARCY. No. 

Mr. CRAWFORD. OK. Do you intend to submit public comment? 

Ms. DARCY. No, we intend to review the public comment with the 

EPA. 

Mr. CRAWFORD. Collaboratively? 

Ms. DARCY. Yes. 

Mr. CRAWFORD. OK. I was just a little confused by that. 

Deputy Administrator, can you define a ditch? I just want to get 

some clarity. I apologize if I am repeating myself, but could you 

give me some clarity on what a ditch is. 

Mr. PERCIASEPE. Well, I mean, what we have tried to do in our 

proposal is make it clear that ditches that are built on land that 

is normally dry and somebody puts a ditch through it to drain it 

from rain or some other wet event and it has got water in it sometime, that these are not covered no matter what. 

Mr. CRAWFORD. OK. So here is the problem I have with that. 

Mr. PERCIASEPE. OK. 

Mr. CRAWFORD. Ultimately, that ditch is designed to drain water. 

It is going to drain into something. At some point it drains into a 

body of water that is regulated and then therefore becomes regulated; is that not correct? 

Mr. PERCIASEPE. So the reason we are doing the rulemaking—— 

Mr. CRAWFORD. I have only got 5 minutes. Is that correct? 

Mr. PERCIASEPE. I understand, but let me answer, please. If you 

just look at the definition of ‘‘significant nexus,’’ you might start 

getting into those kinds of thoughts. 

But, so what we did in the rulemaking is we specifically by rule 

are excluding those no matter whether they meet a test or not, and 

I think that is a key important factor. 

Mr. CRAWFORD. We had in the last 2 or 3 days in my hometown, 

we have had about 14 inches of rain. Got a neighbor, got a swimming pool, swimming pool overflows, can’t handle too much. Water 

flows into a ditch, ditch flows into a regulated body of water. How 

far back, does that swimming pool become a regulated waterway? 

Mr. PERCIASEPE. It does not. It is not a wetland nor is it—— 

Mr. CRAWFORD. You don’t think that is much of a stretch, 

though, do you, I mean, to think that—— 

Mr. PERCIASEPE. No. I think it is a stretch. 

Mr. CRAWFORD. Do you really? 

Mr. PERCIASEPE. We are—— 

Mr. CRAWFORD. The ambiguity that I am hearing from all of this 

is so great that I don’t think that is a stretch at all. 

Mr. PERCIASEPE. Artificial lakes, ponds, swimming pools, they 

are specifically excluded. We are writing them in the pool. 

Mr. CRAWFORD. Up to the point that they overflow into a ditch 

that drains into a regulated body of water at which point they become connected, correct? 

Mr. PERCIASEPE. Go ahead. 

Ms. DARCY. I would say that is not a significant nexus. 

Mr. CRAWFORD. OK. Well, I am not sold on that, but at any rate, 

so what about flooded rice fields? At some point in time they are 

going to drain into—— 

23 

Mr. PERCIASEPE. Flooded? 

Mr. CRAWFORD [continuing]. Flooded rice fields. 

Mr. PERCIASEPE. Rice fields are not included. 

Mr. CRAWFORD. Well, I think what is going on here is an effort 

to create such ambiguity that you are given ultimate regulatory authority on a whim; and that, there is really no recourse for those 

folks that are affected and fining that is going to come through, 

and farmers and other businesses the cash flow that it is going to 

impact and there has not been any economic analysis to address 

that. 

And let me ask you one more thing about public comment. Will 

you be entertaining public comments from other Federal agencies? 

Ms. DARCY. Yes. 

Mr. CRAWFORD. You will. And you think that is appropriate? 

Ms. DARCY. Yes. Most rulemaking—— 

Mr. CRAWFORD. Are they more heavily weighted than public comment from, say, some of the relevant stakeholders in the private 

sector? 

Ms. DARCY. No, sir. 

Mr. CRAWFORD. Our friends at Farm Bureau, for example, National Association of Counties, will they be given equal weight, 

their public comments? 

Ms. DARCY. Yes, they will. 

Mr. CRAWFORD. I think you will find when you hear their public 

comments, and I would also echo the sentence of the chairman, encourage you to stay around and hear their comments and find that 

they probably agree with me that there is significant ambiguity in 

this to cause great concern not just in the agriculture industry, but 

to homeowners to business owners and anybody that has even a 

view of water from where they are standing. 

So with that, I yield back. 

Mr. GIBBS. I am going to take 14 of your seconds just for clarification. We talk about the vagueness, the ambiguity. That is what 

you are saying, but doesn’t this open for citizens’ lawsuits, how 

they interpret the rule and litigation? 

Mr. PERCIASEPE. Here is where we can work together. We have 

tried to list these things specifically in the rule. Rice growing is 

specifically listed as excluded. Normal agricultural activities are excluded. 

Mr. GIBBS. We will get into that later. 

Mr. PERCIASEPE. So if we can, yeah, we expect to hear from the 

stakeholders during this proposal and comment period time if we 

have not done that enough here and then we can sit down and talk 

to them. 

Mr. GIBBS. OK. 

Mr. PERCIASEPE. But our intention is to get it in here so that—— 

Mr. GIBBS. We will talk later about this. The rest of this Clean 

Water Act affects other than 404 permitting. 

Ms. Edwards. 

Ms. EDWARDS. Thank you very much, Mr. Chairman. 

And thank you very much to our witnesses today and especially 

for your honorable public service. I think there are many of us in 

the public who really appreciate both the work of the EPA and the 

24 

Army Corps in protecting our water and making sure that it is 

clean. So thank you. 

I just want to clarify. The notice of the proposed rule was issued 

on April 1st. My understanding is that, because you heard from agricultural groups and other stakeholders that there wasn’t enough 

time to respond adequately to the rule, that that—the response 

time for comments has been extended to October 10th. Is that correct? 

Ms. DARCY. Actually, it has been extended an additional 91 days 

till October 20th, because 90 days falls on a Sunday. 

Ms. EDWARDS. Thank you. 

So hearing from the stakeholders, you took that into consideration and you have extended the rule—— 

Ms. DARCY. Yes. 

Ms. EDWARDS [continuing]. The comment period? Thank you. 

And then—so is it a surprise to you that you have not yet heard 

formally from States whether they support or oppose the rule because they haven’t—there hasn’t been a chance yet and that it is 

probably preliminary to qualify, quantify or to characterize the supporter opposition to the proposed rule at this stage? 

Ms. DARCY. I think that is correct. 

Ms. EDWARDS. Thank you. 

And then, Mr. Chairman, I have three letters to this committee 

urging us—urging the Congress to enable the EPA and the Army 

Corps to go through the process of the rulemaking rather than create legislation that is unnecessary to respond to what has been, 

you know, a very—you know, an environment in which people have 

been quite uncertain about what it is that their responsibilities are 

for permitting, and I would like to introduce those into the record. 

It is a letter from Trout Unlimited and 15 sportsmen and conservation groups supporting the process and saying themselves 

that they probably plan to submit comments. 

Mr. GIBBS. So ordered. 

Ms. EDWARDS. Thank you. 

[The information follows:] 

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Insert offset folio 8 here 88239.008
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Insert offset folio 9 here 88239.009
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Insert offset folio 10 here 88239.010
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Ms. EDWARDS. I have a question, Mr. Perciasepe. 

Can you describe the exemptions that exist in the act and in your 

proposed rule for discharges associated with agricultural activities. 

And in the event that certain agricultural activities don’t qualify 

for an exemption, am I correct that the Army Corps has a fasttrack nationwide permit that authorizes an assortment of discharges associated with agricultural activities that cause the loss 

of less than half an acre of water bodies? 

Ms. DARCY. Yes. That is our nationwide permit program, and 

that is correct. 

Mr. PERCIASEPE. Yeah. And I—just as a general matter, the normal agricultural activities of—I mean, essentially, for me, I could 

say, if you can—if you are on a piece of land and you can plow it, 

plant it and harvest it, you—under—now you can do it under this 

rule. There is nothing in here that is going to change that. 

Ms. EDWARDS. Thank you very much. 

We recently enacted—in fact, the President just signed yesterday 

our Water Resources Reform and Development Act, and we included for the first time provisions that I have been quite a champion of, using innovative green and low-impact technologies. 

We may hear testimony later that suggests that somehow those 

green infrastructure activities would then fall under the purview of 

this rule. 

Do you have a sense of that? 

Mr. PERCIASEPE. We don’t believe that that will happen and it 

is not our intent. And, of course, we are going to be interested in 

comment on that. 

But most green infrastructure that I am familiar with in an 

urban setting is going to be built in a place that is normally dry 

and you are moving drainage to it. 

There are going to—there may be instances where somebody 

wants to utilize an existing stream or a lake as part of that, and 

then we would have to look to see whether that is part of the waste 

treatment exemption or whether or not there would be some—but, 

again, you don’t have to worry about this unless you are discharging fill or pollution into that water. 

If you are not discharging pollution into the water, you are—you 

know, you are not going—or fill, you are not going to have to get 

a permit or be under this jurisdiction. 

So we would think and it would—certainly is our intent that 

drainage in an urban area for—and how it is altered to have green 

infrastructure and low-impact development would not become jurisdictional and would not be jurisdictional, just as we were talking 

about ditches earlier. So—— 

Ms. EDWARDS. And so, obviously, those kinds of activities are actually designed to filter the water, not to contribute to the pollution. 

Mr. PERCIASEPE. We absolutely want to encourage conversation 

work on agriculture land and we want to encourage low-impact development in urbanized areas, including green infrastructure. Absolutely want to do that. 

Ms. EDWARDS. Thank you. 

And then, lastly, I understand the rule, if it is finalized, would 

protect roughly 3 percent more waters than are protected today, 

31 

but almost 5 percent fewer waters than were protected prior to the 

Supreme Court’s 2001 decision. 

Is that correct? And does that sound like an unprecedented radical expansion to you? 

Ms. DARCY. Those numbers are correct. And, in my view, it is not 

a radical expansion. 

Ms. EDWARDS. Thank you. 

Mr. GIBBS. Mr. Denham. 

Mr. DENHAM. Thank you. 

Like the gentleman from Minnesota, I am also a farmer, but, unlike him, I cannot hope and wait to see what you guys are going 

to come up with. I can’t take hope to the bank. And so I am very 

concerned about this. 

It affects the livelihood of our community, of our State, the largest ag State in the Nation that is feeling some of this pain already 

due to Army Corps and some of the challenges they have already 

put on some of the fallowed fields that are now having some water 

on those fields. 

And I am concerned that this year, because of Government, when 

water gets shut off to the Central Valley, 1 million acres of farmland could be lost. 

Now, it might rain next year and we may have with—the 

fallowed fields may have some puddles that—or ponds that—or 

even some streams that end up going through 1 million acres of 

lost productivity, of lost jobs. So, yeah, I have got a lot of questions 

about this. 

Let me start with you, Ms. Darcy. Because of the ambiguity of 

this rule, do you think it is going to encourage third-party lawsuits? 

Ms. DARCY. I actually think that this proposed rule will bring additional clarity to the jurisdictional determinations that are necessary under the Clean Water Act. So I think, with additional clarity, there will be fewer lawsuits. 

Mr. DENHAM. So you think that this new rulemaking will create 

less lawsuits? 

Ms. DARCY. I do. 

Mr. DENHAM. And greater clarity? 

Ms. DARCY. I do. 

Mr. DENHAM. Now, the permits that are going to be required— 

how long do you think it will take to issue a permit? 

Ms. DARCY. Congressman, it depends on what the permit’s being 

asked for, that determines how much information we need upfront 

for that particular permit. It does vary. It varies from region to region. 

We have individual permits. We have nationwide permits. Nationwide permits usually go more quickly than individual permits 

because individual permits usually require more data and more information. 

Mr. DENHAM. If it is an area of farmland that has been historically farmed, but may have sat fallow for a year or two and now 

is required to do a permit, how long do you think it would take to 

do a permit? 

32 

Ms. DARCY. Congressman, what you have described would be 

prior converted cropland. That is exempt from the Clean Water 

Act. 

Mr. DENHAM. Well, I will circle back around to you, because I 

have got a number of constituents that have these very same concerns today that are unable to farm, that are losing a season of 

planting, that can’t go back through and farm that property and, 

again, seeing that job loss in our community. 

Let me ask you about the Clean Water Act. In 1974, when this 

was originally done, it was then navigable waters with ebbs and 

flows—ebbs and flows of the tide. Now we are seeing ebbs and 

flows on our riverbanks because of discharges from Government 

forcing discharges. 

What we see in the Central Valley are these pulse flows. These 

pulse flows not only go down the river, but they overflow into the 

farmland that is adjacent to it. 

Sometimes it goes into the crops, sometimes forming a pond or 

a puddle or a mudhole that now could be under this very same 

thing. 

So my question is both on navigable waters as well as intrastate 

waters where now EPA and the Corps would have jurisdiction over. 

Ms. DARCY. Under current law, we have jurisdiction over navigable waters. 

Mr. DENHAM. Intrastate waters? 

Ms. DARCY. Yes. 

Mr. DENHAM. What about groundwater? 

Ms. DARCY. No. 

Mr. DENHAM. Mr. Perciasepe, you talked about pollution. 

Is fertilizer a pollution? 

Mr. PERCIASEPE. Properly applied, no. 

Mr. DENHAM. Properly—what about pesticides? 

Mr. PERCIASEPE. Pesticides require—have to be applied according 

to label, and they would fall under a general permit if they apply 

it on water. 

Mr. DENHAM. So, again—— 

Mr. PERCIASEPE. But not in—not when a field is flooded, if I can 

think where you are going. That would not be—— 

Mr. DENHAM. That is exactly where I am going. That is the concern that a number of our farmers have. 

Mr. PERCIASEPE. It would not change—that would not change because a flooded field during—is not—is not jurisdictional. 

Mr. DENHAM. Yeah. But if you fallow a field and you are unable 

to plant for a year or 2 years or 4 years and a pond or a small— 

something that is already covered under your own definition now 

gets pesticides or herbicides or fertilizer in it, that would be a pollutant; would it not? 

Mr. PERCIASEPE. Boy. The general permit for pesticide application under the Clean Water Act requires the avoidance of spraying 

directly on waters. If there is a crop and you spray on the crop, it 

does not need a permit—or it does not fall under that. 

Mr. DENHAM. So it would fall under that if you were spraying 

your crop and it went into that water—even though it is not into 

a river or a stream, but it was considered an adjacent water on a 

farmer’s field? 

33 

Mr. PERCIASEPE. Water on a farmer’s field is not jurisdictional. 

Mr. DENHAM. Not if it is flooding. 

But if it is accumulated water, it is under this definition; would 

it not? 

Mr. PERCIASEPE. I don’t think so. 

Mr. DENHAM. Well, then, why couldn’t you answer Mr. Young’s 

question about a pond? I mean, we are talking about farmland 

here. 

Mr. PERCIASEPE. I would have answered Mr. Young’s question, 

but I didn’t get a moment. That is all. I don’t mean any—anything 

by that. He could drain his pond if he wants to. It doesn’t require 

a permit from—under the Clean Water Act. 

Mr. DENHAM. Thank you, Mr. Chairman. I have got a number of 

other questions, but I will wait for the next round. 

Mr. GIBBS. Ms. Napolitano. 

Ms. NAPOLITANO. Thank you, Mr. Chairman. 

And I am glad that we have such great agencies that help our 

communities, especially in California, where we really need you. 

Deputy Administrator Perciasepe, it was indicated that the proposed ruling does not impact ephemeral waters that may exist only 

when the rainstorms occur, especially like in southern California. 

But the concern specifically is, if the water that may fall as rain 

is temporarily captured in groundwater retention areas, would that 

water be classified as jurisdictional? 

And this is really an important issue because of the drought and 

the fact that we are trying every methodology to capture more 

water and infuse it back into the aquifer. 

Mr. PERCIASEPE. First of all, we explicitly make sure to mention 

that groundwater is not included here. So—but, second, there is no 

change from the existing law. So if it goes back—— 

Ms. NAPOLITANO. Well, that is for groundwater. I am talking 

about captured water for replenishment. 

Mr. PERCIASEPE. Right. 

So if this activity is currently going on, whichever way it is, we 

are not changing any existing jurisdiction in that regard. So we 

want to encourage, you know, good capture and recharge. 

Ms. NAPOLITANO. Well, there is so little rainfall in California, the 

episodes may be very few and far between. 

Mr. PERCIASEPE. Yes. I think both of us are pretty familiar with 

the—— 

Ms. NAPOLITANO. Thank you. 

And, also, does the wastewater exemption clearly include water 

recycling projects? Is there or should there be a clear exemption 

granted for water recycling projects, especially in the Western 

States where the drought is so critical? 

Mr. PERCIASEPE. So we don’t think water recycling projects that 

are existing today are covered, and we are not trying to change 

that. 

But—so if it is not regulated today, it won’t be regulated under 

this rule. But if your folks have comments on this so that we can 

be clear about that, we would work on that. 

Ms. NAPOLITANO. Well, we certainly do hope that we would be 

able to clarify that, because this is one of those issues that is not 

34 

going to be ignored in southern California or in California or the 

Western States. 

The other area that I have a concern about is the stormwater 

discharge regulations that are going to be imposed on communities 

by EPA. 

Mr. PERCIASEPE. Stormwater? 

Ms. NAPOLITANO. Yes. The discharge going into the stormwater 

and catch basins going down to the ocean. 

Mr. PERCIASEPE. So under another part of the Clean Water Act, 

areas that have stormwater runoff are required to get a permit 

and—under the—under section 302 of the Clean Water Act. 

And most of them have those permits that require either green 

infrastructure or some other maintenance activities to make sure 

that pollutants are minimized, but there is no change to that in 

this rule. 

Ms. NAPOLITANO. OK. Well, I may want to clarify that later, if 

I may—— 

Mr. PERCIASEPE. OK. 

Ms. NAPOLITANO [continuing]. Because there is an issue that 

some of the cities have raised concern—it is an unfunded mandate 

for them to be able to ensure that nothing—no contaminants go 

into the drain systems for stormwater release. 

Mr. PERCIASEPE. OK. We are—I am happy to follow up with you 

on that, but we are not trying to change the stormwater rules in 

this regulation. But if there are issues with stormwater, I would— 

I would—— 

Ms. NAPOLITANO. If you wouldn’t mind, yes. 

And I certainly want to thank Ms. Darcy. Your folks are tremendous in my area. They work with all my agencies, and we have 

been able to clarify and work forward on many of the issues that 

have—issues in my area. 

Thank you, Mr. Chair. I yield back. 

Mr. GIBBS. Just some housekeeping. 

I ask unanimous consent that Mr. Duncan from Tennessee, who 

is not on this subcommittee, be included at today’s hearing. 

Without any objection, so ordered. 

Mr. Mullin. 

Mr. MULLIN. Thank you, Mr. Chairman. 

And thank you both for being here. I know we have met actually 

on separate occasions, not always on the best terms, but we are all 

fighting for the same thing, hopefully, this country and the right 

to still be entrepreneurs. 

I think what the biggest fight is here, though, is that we see, as 

business owners, as farmers—as I sit in front of you, I am farming 

the same land that now is the fourth generation. And it seems like 

every time we turn the corner what we are doing is we are asking 

more and more permission to just simply do the same job that we 

have always done. 

I think you are going to find it very hard to find somebody that 

has got more interest in their water than the person that is on that 

land since before statehood, but the way the definition is written 

with navigable waters, I am finding it very hard to understand, 

ma’am—and maybe you can clear it up for me—how a stream gets 

into that. 

35 

I may be just a simpleminded individual from Oklahoma that 

has been blessed enough to be able to be a congressman. Navigable 

waters would be at least something you could put a canoe on. 

Ms. DARCY. Congressman, navigable waters, since the inception 

of the Clean Water Act, had a great deal of attention and litigation 

as well as court decisions. 

Mr. MULLIN. I am well aware of those. But I am just trying to 

figure out why you guys feel like you have to come out with clarification when it is pretty clear itself and what we are doing is we 

are going farther up the streams and making a definition even 

more confusing and we are taking rights away from the States. 

Sir, you had made a comment that you said the State water 

boards, you felt like, was on board with you, if I understood that. 

Because the question that the chairman and Congressman Young 

had asked you was what States support you, and you made a statement that the water boards of the States support you. 

Mr. PERCIASEPE. I said that the—some of the organizations that 

represent States, their water—water associations have supported 

doing a rule. 

Mr. MULLIN. Who? 

Mr. PERCIASEPE. We don’t have—— 

Mr. MULLIN. Because I have got our—the gentleman from Oklahoma that is going to be testifying on the second panel, and no one 

contacted them. 

So who is it that you said is supportive of you? 

Because if we are—if we are going to try really taking in the waters and having the best interests of the landowners, the people 

who pay the tax to own that land, the people who live in that 

State, wouldn’t you think you would take the time to comment before you made this, not requiring them to come out afterwards and 

make comments? 

I find it almost laughable when you guys are going to have these 

comments out, which really isn’t going to have that much impact. 

You might add a thing or two, but the rule is already out. 

You have already made your mind up what you are going to do; 

otherwise, you would have consulted them beforehand. Is that not 

correct? 

Mr. PERCIASEPE. We did talk to States. I can’t say we—— 

Mr. MULLIN. Who? 

Mr. PERCIASEPE [continuing]. Talked to every State. 

Well, here is a list of State associations who have asked us to do 

a rulemaking. They don’t necessarily support this rulemaking yet 

because we don’t know what their position is yet and we are going 

to work with them before we finalize. 

Mr. MULLIN. Then, you should have had that before you went out 

with it. That is what I am trying to understand. 

Now, let’s go back to the farming just for a second. The way I 

read this is you guys are going to except existing permits. It is not 

going to change existing permits. Is that not correct, ma’am? 

Ms. DARCY. That is correct. 

Mr. MULLIN. OK. So, now, what about that existing permit? 

What happens—does it stay with the land or does it stay with the 

holder of the permit? 

36 

Say my—say my father—which I am not hoping he does, by any 

chance—but say my father owned the permit and he passed away 

and it had be transferred to myself. Is that considered an existing 

permit still yet? 

Ms. DARCY. If it is applied to the land that it was permitted on. 

But if you are talking about—— 

Mr. MULLIN. But the land has essentially changed hands; so, the 

permit will change hands, too. 

Ms. DARCY. I believe it goes with the land. 

Mr. MULLIN. You believe? Because it doesn’t read that way. 

Ms. DARCY. Well, then, that clearly—— 

Mr. MULLIN. It doesn’t read that way at all, and there needs to 

be clarification on that. Because I can tell you I have read it and 

the way I read it is that every time we lose a generation and a 

farm changes hands—which you know farms are generational—we 

are going to lose farms as they happen—as this happens. 

Ms. DARCY. Congressman, most agricultural practices are exempt 

from the Clean Water Act. 

Mr. MULLIN. Most. Ma’am, there are still permits because you 

had enough worry about it that you put in it that—existing permits, existing permits. You—the—it specifically says existing permits. 

So we keep using this, that most are exempt. Actually, what was 

first said was—sir, you said that all ag is exempt. Now we are to 

most. 

Mr. PERCIASEPE. All normal agricultural activities. 

Mr. MULLIN. Normal. What is considered normal? 

Mr. PERCIASEPE. Sir, the plowing—— 

Mr. MULLIN. Because what I do is plowing. 

Mr. PERCIASEPE [continuing]. Is considered normal. 

Mr. MULLIN. You guys already came into my land and said we 

couldn’t spread chicken litter anymore. That was on my property. 

You guys came in on my property and said we couldn’t spread 

chicken litter anymore, effectively killing the chicken industry 

around for the small business owners. So I don’t want to hear that 

anymore about normal. 

Normal is what? How many farms have you been on? How many 

times have either one of you guys worked on a farm? 

Mr. PERCIASEPE. I went to an ag college, sir. 

Mr. MULLIN. What is normal in Washington, DC, sir? There isn’t 

one thing in Washington, DC, that is normal, not one. 

Mr. PERCIASEPE. Well, I am not talking about—— 

Mr. MULLIN. So I don’t want to hear the normal. What I want 

to know is how are we going to protect generational farms. 

Ms. DARCY. Congressman, if there is ambiguity in the proposed 

rule about existing permits and how they will be transferred between either the current permit holder or the future of that land, 

I think that is something we need to clarify. 

Mr. MULLIN. Yes, we do. Please, if you could, get with me on 

some clarification language on that. Thank you. 

Mr. GIBBS. Mr. Garamendi. 

Mr. GARAMENDI. It is interesting that we ended with chicken manure. 

37 

Mr. Perciasepe and Assistant Secretary Darcy, I personally 

thank you for your efforts to clarify a longstanding controversial 

issue that has been with this country for well over 40 years now, 

and that is the application of the Clean Water Act. 

You have had a very, very difficult task. Because of the Supreme 

Court interpretations of the law, you have been left with the necessity to provide clarification. 

And it is my understanding that this effort, this proposed, proposed, rule, is a result of the necessity to clarify the application of 

the Clean Water Act. 

If I am correct, would—am I correct? And could you briefly describe—very briefly describe how it is that we came to this proposed rule and its purpose. 

Ms. DARCY. Congressman, the purpose of the proposed rule is to 

clarify the ambiguities, many of which resulted from the Supreme 

Court decisions and the Supreme Court directing us to develop a 

rulemaking for this purpose. 

We coordinated between the agencies, EPA and the Corps of Engineers, to develop what we think is a proposal that will do just 

that, to give people clarity, hopefully, more efficiency in this permitting program, and the ability for people to know what is jurisdictional and what is not. 

Mr. GARAMENDI. So the purpose and the goal is to provide clarity? 

Ms. DARCY. Yes, sir. 

Mr. GARAMENDI. Apparently, that has not yet been achieved, at 

least among the members of this committee and a good portion of 

the public. 

How are you working now, beyond explaining to this committee, 

the process of achieving clarity? We are in the midst of a rulemaking. Can you describe to all of us what you would expect the 

public to do if they believe there is uncertainty in your regulation. 

Ms. DARCY. Through the public comment period, which now goes 

until October 20th, we would anticipate that concerned citizens 

who have comments on this rule, whether it is not clear enough or 

the definitions aren’t what they believe to be representative of how 

we should be regulating waters in the United States, we anticipate 

that to come through the public comment process via the Web site 

set up for public comment. 

We also are having webinars and conference calls with interested 

stakeholders and groups around the country to get their input and 

get their comments that way as well. 

Mr. GARAMENDI. Mr. Perciasepe? 

Mr. PERCIASEPE. Well, we are also doing more—we are also doing 

additional specific outreach. And I think one of the things we are 

developing now with the extended time period is additional, more 

focused outreach as well. 

We have met with a lot of people. We have a round table with 

Small Business—with the Small Business Administration coming 

up on June 24th. 

We are going to have a specific project—process with our co-regulators at the States in terms of the implementation of the Clean 

Water Act. 

38 

Because once you decide where it is jurisdictional, all the implementation—a lot of the implementation takes place at the State 

level as well. 

So we expect to have quite a bit of additional outreach through 

the summer. 

Mr. GARAMENDI. OK. Does your Web site provide specific opportunities for various locations in the country for people that are concerned about the lack of clarity in the rule to make comments? 

Ms. DARCY. Yes. 

Mr. GARAMENDI. OK. Can you provide to the committee those 

specific sites and locations? 

Ms. DARCY. Yes, we can. 

Mr. GARAMENDI. And efforts that you are making to reach out to 

agriculture, chicken growers or whomever, as well as—I don’t 

know—wastewater and drainage systems across this—across the 

Nation. 

Finally, I just—it is important that we understand that we are 

in a rulemaking process. You have proposed a rule. Is it the final 

rule? 

Ms. DARCY. No, sir. 

Mr. GARAMENDI. OK. You—are you committed to listen carefully 

to the objections, some of which you have heard here today, others 

of which I suspect you will hear in your process, to take them into 

account and to modify, where appropriate, the ambiguities and to 

clarify? Is that your commitment, to do that? 

Ms. DARCY. Yes. 

Mr. GARAMENDI. Mr. Perciasepe? 

Mr. PERCIASEPE. Yes, sir. 

Mr. GARAMENDI. OK. And you are representing both the Corps 

of Engineers and the EPA. Is that correct? 

Ms. DARCY. Yes. 

Mr. PERCIASEPE. I am EPA. She is the Corps. 

Mr. GARAMENDI. I got it. 

Now, it is important for all of us to realize where we are in this 

process. You know, I have got a lot of folks in my district. 

I have a large agricultural district. I have got plenty of water, 

like 200 miles of the Sacramento River Valley, including the river, 

and a lot of questions. 

When my constituents come to you with—asking for clarification, 

will you listen to them and will you take that under advice and, 

if appropriate, make modifications? 

Ms. DARCY. Yes, sir. 

Mr. GARAMENDI. Now, finally, clarification is one thing. There is 

the law and there are certain thresholds that you will have to follow, I suspect. 

That then becomes a court question, is that correct, a question 

for the court to answer? 

Ms. DARCY. As to whether the rule complies with the underlying 

law? Yes, ultimately. 

Mr. GIBBS. Your time’s up. 

Mr. GARAMENDI. Mr. Chairman, thank you very much. 

Mr. GIBBS. Mr. Meadows. 

Mr. MEADOWS. Thank you, Mr. Chairman. 

Thank you both. 

39 

I do want, Ms. Darcy, to give you a chance to respond in terms 

of those permits that supposedly transfer. I assume you have counsel here. I would give you a chance to revise your statement because I can tell you, from real experience, I don’t think that your 

testimony was accurate. 

If you have got counsel in terms of if there is a transfer of lands, 

transfer of permit, you know, perhaps you want to do that. 

Is that your counsel leaving? 

Ms. DARCY. No. 

Mr. MEADOWS. OK. All right. Well, you can get back to the committee. 

Ms. DARCY. OK. 

Mr. MEADOWS. I have got limited time. But it is not accurate, 

and I would just encourage you to get together and perhaps change 

that. But let me go on. 

Ms. DARCY. As I responded to Congressman Mullin, that if it is 

not clear, we need to make it clear. And maybe I need to be clear. 

Mr. MEADOWS. Well, it is clear that it doesn’t transfer. And so— 

and your counsel’s nodding his head ‘‘yes.’’ So I would just encourage you to revise your statement. 

The other part of that is we are implementing these rules for the 

health and safety of the American people. Is that correct? 

Ms. DARCY. Yes. 

Mr. MEADOWS. OK. So, Mr. Perciasepe, do you have adequate 

funding to make sure that the current rules and regulations that 

we have are implemented and carried out to provide for that health 

and safety, current funding? Yes or no? Do you have adequate 

funding? 

Mr. PERCIASEPE. Yes. 

Mr. MEADOWS. For the current regulations? 

Mr. PERCIASEPE. The current—the one on the books? 

Mr. MEADOWS. Everything that is on the books, without a 

change. 

Mr. PERCIASEPE. Yes. 

Mr. MEADOWS. So everybody should be safe today? 

Mr. PERCIASEPE. I am not exactly sure what—I mean, we implement a lot of different laws that Congress has passed, but—— 

Mr. MEADOWS. OK. Well, let me go on further, then. 

With this rule, any rule that an agency makes is really for the 

sole purpose of carrying out the intent of Congress’ law. Would you 

both agree to that? 

Ms. DARCY. Yes. 

Mr. MEADOWS. OK. 

Mr. PERCIASEPE. Yes. 

Mr. MEADOWS. So since the administration came up with this, at 

what point did someone in the administration realize that the intent of Congress under a previous law was not being carried out? 

Who made that decision, that the original intent of Congress 

when they passed the Clean Water Act is not being carried out? 

Who made that decision? 

Ms. DARCY. Well, the purpose for doing this rule is to provide 

clarity on what we think, as a result of the Court decisions, we 

needed to do. 

40 

Mr. MEADOWS. OK. So it is your agencies that decides the intent 

of what Congress originally passed as law? 

Mr. PERCIASEPE. Well, let me just—— 

Mr. MEADOWS. Because I am a—I am part of a body of 435 people, and every day I am confused as to the intent of this body. 

So it is amazing how somebody at your agency could figure out 

what the original intent of those who passed the law would be. 

Mr. PERCIASEPE. I think what is—what we were responding to is 

decisions that were made in the past that went to the Supreme 

Court. 

And the Supreme Court has a number of different positions or 

opinions that they have issued, and what we have done, looking at 

those opinions of the Supreme Court which have come out in the 

last decade, that the existing regulations that we had on the books 

from the 1970s need to be modified. 

Mr. MEADOWS. All right. So you are ignoring Justice Alito’s concurring opinion, then, because he said that, really, Congress needs 

to clarify what the waters would be. And so you are taking Justice 

Kennedy’s sole opinion and ignoring the other four justices? 

Mr. PERCIASEPE. Well, I—— 

Mr. MEADOWS. So who is—— 

Mr. PERCIASEPE. I believe—I believe the chief justice has opined 

on the fact that the—that the executive branch should do something about this. 

Mr. MEADOWS. And that Congress needs to weigh in as well. 

Mr. PERCIASEPE. No. I think Justice Roberts said the—that the 

executive branch—— 

Mr. MEADOWS. So you are taking—— 

Mr. PERCIASEPE [continuing]. Has had an opportunity to do that. 

Mr. MEADOWS. So you are taking Justice Kennedy’s and Roberts’ 

opinion? 

Mr. PERCIASEPE. Well—— 

Mr. MEADOWS. OK. I think my point is made. 

And, really, the whole point is that Congress should be the one 

that is fixing that, not administrative law, because I am very concerned that you continue to make rule after rule after rule and arbitrarily decide what is good for the American people when there 

are 435 in this body—elected officials—to make that decision. 

Would you not agree? 

Mr. PERCIASEPE. I don’t agree that it is arbitrary, because I think 

we interpreted the law that Congress passed in 1972. We put out 

those rules back in the 1970s. 

Those are the rules that the Congress—the Supreme Court never 

said they were unconstitutional or the law that the Congress 

passed was unconstitutional. They just said—— 

Mr. MEADOWS. So you just passed—— 

Mr. PERCIASEPE [continuing]. The executive branch—— 

Mr. MEADOWS [continuing]. Unclear rules and we are just clarifying it, is what you are saying. 

Mr. PERCIASEPE. Well, people brought a case and it went to the 

Supreme Court. The Supreme Court said we should modify. 

Mr. MEADOWS. Let me close because I am out of time. 

41 

A little over 30 days ago I brought up with you, Mr. Perciasepe, 

an issue with contamination in my district. I have yet to hear from 

you. Have you checked into all of that? 

We have gotten no response from you. And if you are really concerned about the health and well-being of the American people, I 

would have thought that a followup phone call with egregious violations within the EPA would have been appropriate. Wouldn’t 

you? 

Mr. PERCIASEPE. Yes, sir. 

Mr. MEADOWS. OK. When can we expect a response from you and 

get that cleaned up? 

Mr. PERCIASEPE. You will get a—you will get something from me 

before the end of the week. 

Mr. MEADOWS. Thank you, sir. 

I will yield back. 

Mr. GIBBS. Mr. Jolly. 

Mr. JOLLY. Thank you. 

Assistant Secretary Darcy, you mentioned that this was the administration’s proposal. Is that correct? 

Ms. DARCY. Yes. 

Mr. JOLLY. Who else within the administration has had input on 

this? 

Ms. DARCY. Well, it was developed with EPA and the Army 

Corps of Engineers. 

Mr. JOLLY. I understand that. 

But you—you deferred, then, to call it the administration’s proposal. 

Has somebody from the Domestic Policy Council been involved in 

the creation of this proposed rule? 

Ms. DARCY. No. But the Office of Management and Budget has 

reviewed the proposed rule. 

Mr. JOLLY. From a policy perspective, has anybody from the 

White House been involved in this proposed rule? 

To refer to it as the administration’s proposal is an interesting 

choice of words. It is as though you deferred some of the responsibility of this to the administration collectively as opposed to just 

the EPA or the Corps. 

Ms. DARCY. We are part of the administration. So as I have stated, this has been also reviewed by the Office of Management and 

Budget, which is an arm of the President and an arm of the administration. 

Mr. JOLLY. To the extent of your knowledge, was the Domestic 

Policy Council involved at all in the proposed rule? Yes or no? 

Ms. DARCY. I don’t believe so. 

Mr. JOLLY. OK. Is that your understanding as well, Mr. Deputy 

Administrator? 

Mr. PERCIASEPE. I can’t know specifically. But when we do a 

rulemaking jointly or individually as agencies, it goes through an 

interagency review under an Executive order that has been in existence since many, many administrations ago. 

And in that interagency review run by the Office of Management 

and Budget, all the agencies get a chance to participate and comment on proposals before they go out as a proposal. 

42 

So I don’t have the details on everybody who may have responded or put input into that, but it—opportunity was availed to 

every agency. 

And we actually did some work with the Department of Agriculture to try to clarify conservation practices that would be not— 

be clear that they are not falling—they would not be affected by 

this rule. 

Mr. JOLLY. So in drafting the proposed rule, was there any contribution of language from the White House? 

Mr. PERCIASEPE. I don’t have any specific information. I am 

put—you know, interagency includes the Department of Energy, 

everyone else. 

Mr. JOLLY. OK. So you also mentioned that this is a result of 

some confusion from the Supreme Court decision. Is that correct? 

Ms. DARCY. Yes. 

Mr. JOLLY. OK. You seem to rely on Justice Kennedy’s significant 

nexus definition, though, as having provided some clarity. 

Why the need to expand on his definition? Why not just take it 

as written, if you are relying on that? 

Mr. PERCIASEPE. Well, I think in our definition we did include 

significant language from Justice Kennedy, but we also recognized 

that some—we wanted to make it clear that some—in addition to 

that, we wanted to make it clear that some activities and waters 

were not going to be included. 

We talked about the ditch already. So we wanted to clarify that 

in the rulemaking, that, you know, dry—ditches that are in these— 

roadside ditches types of ditches would not be included—— 

Mr. JOLLY. OK. 

Mr. PERCIASEPE [continuing]. As an example, or groundwater or 

any number of other things. So were not specified in his definition. 

Mr. JOLLY. The curiosity is because, Assistant Secretary Darcy, 

in your written testimony today, you refer to the confusion created 

by regional application. 

And I find your written testimony interesting because it is as 

though the Corps embraced regional decisions as being closest to 

the community, best understanding the issues of the community 

following SWANCC and Rapanos, and, yet, now either the Corps, 

the EPA or the administration broadly is stepping away from that 

regional application, because in your written testimony it is now 

suggesting that what was the answer, to use regional application, 

actually created confusion, and that is now why you are issuing 

this. 

Ms. DARCY. Well, there will be regional distinctions between 

other waters, but in order to have more clarity overall, I think that 

the clarity that this rule will provide will give direction to each of 

our regions as well as our divisions and our districts about how to 

apply this overall. 

Mr. JOLLY. OK. And the last question. 

Part of the efficiency it says that you will be creating is by reducing documentation. Can you explain that. 

I think that is the heart of the concern of a lot of people who 

have concerns within their district, that now this will be a less-documented, less-justified, less-explained decisionmaking authority 

43 

coming from Washington and, in fact, the regional office will now 

have less ability to address specific regional concerns. 

Ms. DARCY. An example of less documentation would be in the 

instance of the definition of tributaries, that people will now know 

that a tributary is a jurisdictional water of the United States. 

Previous to this rule, there were instances where we would have 

to go out on the ground to make a determination as to whether a 

tributary was actually a navigable water. 

So, in this instance now, we have defined tributary so an applicant or the Corps will not have to go out and look and say, ‘‘OK. 

Yes. It is a tributary.’’ 

So that is one piece of the documentation that will be alleviated 

by this rule. 

Mr. JOLLY. And you are confident that streamlining is a better 

system? 

Ms. DARCY. I do. I do. 

Mr. JOLLY. All right. Thank you very much. I appreciate it. 

Mr. GIBBS. Mr. Rice. 

Mr. RICE. I want to thank you all for being here today. 

I have certainly learned a lot. I think the problem here is just 

the expansion of the—of the bureaucratic authority here and the 

stifling effect it has on our economy and our freedom. 

And I wasn’t here in 1972, but I sure think we are regulating 

as waters of the United States things that would not have been 

considered in 1972. 

And everybody’s very fearful that this new rule is an attempt at 

further expansion, and particularly with the administration’s expansion of environmental protection in other areas currently. 

I look at this list of—I take it the purpose of this rule is to more 

clearly define what the waters of the United States are. Correct? 

And then I am looking at the proposed definition here, and there 

are six defined categories. And then, on the seventh, it says, ‘‘On 

a case-by-case basis, other waters, including wetlands, provided 

that those waters have a significant nexus to a water defined in 

paragraphs 1 through 3 of this section.’’ 

And then, as you said earlier, the word ‘‘significant’’ is defined. 

And it says, ‘‘The term’’—you know, that is where the—that is 

where the play comes in here, what does ‘‘significant’’ mean. 

‘‘The term ‘significant nexus’ means that a water, including wetlands either on or in combination with other similarly situated waters in the region, significantly affects the chemical, physical or biological integrity of the water.’’ Is that correct? 

Ms. DARCY. Yes. 

Mr. RICE. All right. So you are defining ‘‘significant’’ as whatever 

is significant. Right? You are saying that it has to have a significant connection. It has to have a significant effect. 

Ms. DARCY. Yes. 

Mr. RICE. Well, how does that clarify the rule, I mean, at all? 

Who determines—who determines what significant effect of chemical, physical or biological integrity? Who makes that determination? 

Ms. DARCY. That would be a determination that would be made 

by a regulator on the ground. 

Mr. RICE. So either the EPA or the Army Corps. Right? 

44 

Ms. DARCY. Or the Army Corps. 

Mr. RICE. So what you are saying, then, is that a Federal—federally controlled body of water is anything that we determine is significant? 

Ms. DARCY. It has—— 

Mr. RICE. That is very clearly what this rule says. And even if 

you don’t read it that way, other people get involved in this, other 

groups get involved in this, and they want this enforced to the letter of the law. Am I correct? These outside groups can bring lawsuits based on this proposed rule. Right? 

Ms. DARCY. Yes. 

Mr. RICE. So—— 

Ms. DARCY. Well, the final rule. 

Mr. RICE [continuing]. If they determine that it has some significant effect, then they can hold up commerce, they can invade our 

freedom further. I mean, that is the way I see this. 

Here is what worries me. All this expansion of authority absolutely affects commerce. The people making these decisions have no 

skin in this game. There is no cost to them. 

And what I worry about is we make ourselves less and less competitive in the world with every one of these additional rules, and 

I don’t see this rule clarifying anything. 

I mean, you are saying a water is federally controlled if it is significant and it is significant if we determine it is significant. So I 

don’t see that clarifies anything. And that goes right to the crux 

of the rule. 

So here is my question to you. Do y’all have kids? 

Ms. DARCY. No. 

Mr. PERCIASEPE. I do. 

Mr. RICE. OK. You got kids? You got grandkids? 

Mr. PERCIASEPE. Not quite yet. My daughter’s getting married 

next week. 

Mr. RICE. Here is what I am worried about—because I have got 

kids, too. I am worried that, when these kids get out of college— 

because we are telling them, ‘‘Go to school and get a great education’’—your grandkids get out of college, that we are going to so 

stifle our economic freedom here that there is not going to be anything for them. 

I am worried that they are going to have less quality of life rather than better quality of life because of these rules. 

I think, you know, everybody certainly wants to protect our 

groundwater, but I think we have gone so far in doing this that the 

marginal cost is so much greater than the marginal benefit. 

And I would hope that, when you actually—OK. I hear you say, 

‘‘These aren’t final rules. We are just putting this out for discussion.’’ Well, my opinion is this doesn’t clarify anything. I think my 

office could come up with a better draft than this. 

Mr. PERCIASEPE. Can I just add a couple of points? 

Mr. RICE. Sure. 

Mr. PERCIASEPE. Because I— you are on to the issue we are trying to deal with. And I just want to point out that earlier on in 

the definition section it says notwithstanding whether they meet 

the terms of the following paragraphs, including number 7, these 

things are excluded. 

45 

And so it has a list that we have talked about a number of times 

already, you know, some of the ditch issues—— 

Mr. RICE. OK. You have specifically excluded a few things. I understand that. 

Mr. PERCIASEPE. So then, when you get into the rivers and the 

streams, the—there is a—there is a definition in here that, if it 

doesn’t have a normal bank—and these are defined in the science 

of hydrology—a bank or a streambed or a high—ordinary high 

water mark, then it is not included. 

So the—if it—so, at some point, you know, whether—there has 

to be enough water occasionally in there. You know, even seasonally, it is even—even—you know, all the members of the Supreme 

Court pretty much agreed with there is a seasonal component to 

this. 

So there are—and for it to be a wetland—somebody was mentioning earlier about water flowing out of a pool and across the 

yard and into something else. Well, if it isn’t a wetland, if it doesn’t 

exhibit the hydric soils or the—— 

Mr. RICE. Look—— 

Mr. PERCIASEPE. But I am just pointing out that there are other 

factors that are involved as to whether or not—— 

Mr. RICE. OK. And here is—just from a big-picture perspective— 

and I am way over my time—I understand other factors and exclusions and all that, but here is where we are. 

It takes 15 years to get permission to dredge the Port of Miami, 

which has been dredged umpteen times before. It takes—is going 

to take 5 years to get permission to dredge the Port of Charleston, 

which has been in a constant state of being dredged for the last 20 

years. It takes 10 years to get permission to build a road. 

We can sit here and dance on the head of a pin for days, and 

it doesn’t change the fact that our regulatory expansion is completely out of control and we need to be reining it in rather than 

continuing to grow it. 

Thank you very much. 

Mr. GIBBS. Mr. Webster. 

Mr. WEBSTER. Thank you, Mr. Chairman, for having this hearing. 

I do have one question of EPA. 

How is EPA planning to distinguish between groundwater and 

shallow subsurface connections? 

Mr. PERCIASEPE. First of all, I—— 

Mr. WEBSTER. I mean, I am asking that because Florida is kind 

of a—it is a unique State in a lot of ways. I mean, most of Florida 

is a wetland and the water is close to the surface. 

Anyway, what do you think? 

Mr. PERCIASEPE. We are trying to stay out of groundwater with 

this rule. So if we are not achieving that, that is—I hope we will 

get some comment on that, because we are trying to exclude 

groundwater from being considered. 

We are also trying to make sure that, you know, drainage is not 

included as well. So—— 

Mr. WEBSTER. But in staying out of it, don’t you have to distinguish between the two? 

46 

Mr. PERCIASEPE. I—I—well, one—you are talking about a constructed underground system? I am not—— 

Mr. WEBSTER. Well, just—there is shallow subsurface connection, 

and I assume that that is not the same as groundwater. 

And what I am asking is: Will there be some sort of distinction 

between the two? 

Mr. PERCIASEPE. There—there obviously is. I am just going to 

read from the definitions. ‘‘Excluded from this is groundwater, including groundwater drained through subsurface drainage systems.’’ That is excluded. So there—— 

Mr. WEBSTER. So would—would pollutants introduced into a 

shallow subsurface connection be in need of a permit in order to 

do those discharges? 

Mr. PERCIASEPE. I don’t know the—it would be improper for me 

to try to answer, not knowing the issues. 

I mean, you can inject—you can inject things into the ground for 

disposal, but it does require a permit under the Safe Drinking 

Water Act. 

If you are disposing pollutants or other things into the ground, 

there are—there are—there are places that do this all over the 

country, but they—they do require a permit under the Safe Drinking Water Act. 

Mr. WEBSTER. OK. 

Yield back. 

Mr. GIBBS. Mr. Massie. 

Mr. MASSIE. I just want to start with a commonsense question. 

I think it is common sense. This comes from my homebuilders. 

But, first, let me ask: What is the cost of implementing this new 

rule? Just quickly give me a range. 

Mr. PERCIASEPE. We—our economic—our draft economic analysis, which is out for public comment, estimates between—I can 

look up the exact numbers, but somewhere between $100 million 

and $200 million. 

Mr. MASSIE. $100 to $200 million. 

So are my homebuilders going to have to get more permits or 

fewer permits after this rule? 

Mr. PERCIASEPE. This is based on—— 

Mr. MASSIE. Or do the permits just get more expensive? 

Mr. PERCIASEPE. This is based on the observation that Assistant 

Secretary Darcy said earlier, that when we went back and looked 

at the jurisdictional determinations made under the 2008 guidance, 

we saw that maybe about 3 percent would increase. 

Mr. MASSIE. So you are going to increase the jurisdiction of the 

EPA and the Army Corps of Engineers? 

Mr. PERCIASEPE. No. These would be because of the—— 

Mr. MASSIE. And so that is going to lead to more cost. 

Here is my commonsense question. There is a whole industry 

that tries to deal with these regulations, and I know you spend a 

lot of your time and resources and money, which is taxpayer 

money, trying to protect the environment and our waterways. 

Wouldn’t it be more effective just to set the guidelines for the 

homebuilders to follow and not require them to get permits? 

47 

Wouldn’t that be more cost-effective, to go back to the fundamental principle in this country that you are innocent until proven 

guilty? 

Why don’t we assume that they are good actors until you find out 

otherwise? Why does everybody have to ask ‘‘Mother, may I?’’ to 

the EPA and the Army Corps of Engineers if they just want to 

build a home for somebody? 

Mr. PERCIASEPE. Well, I would—I would say that, if—well, first 

of all, we don’t expect the jurisdiction to—we are—— 

Mr. MASSIE. I am done with that question. 

Mr. PERCIASEPE. OK. 

Mr. MASSIE. What about the idea of just—— 

Mr. PERCIASEPE. The permit—— 

Mr. MASSIE [continuing]. Saying the rules and, if the homebuilders abide by the rules—— 

Mr. PERCIASEPE. The permit that they would need would be the 

authorization to discharge pollutants or fill into the water. 

Mr. MASSIE. Yeah. I mean, I don’t—— 

Mr. PERCIASEPE. And if they don’t—if they don’t do that—— 

Mr. MASSIE. The question here is: If they don’t discharge pollutants, why do they need a permit? 

Mr. PERCIASEPE. They don’t. 

Mr. MASSIE. OK. So why are my homebuilders waiting for permits? 

Mr. PERCIASEPE. Because they want to—they want to fill in—I 

am guessing because they want to fill in—— 

Mr. MASSIE. But their fill is not going to cause pollution; otherwise, you wouldn’t give them a permit. 

Mr. PERCIASEPE. No. The Clean Water Act defines ‘‘fill’’ as a— 

as a—— 

Mr. MASSIE. OK. But why—— 

Mr. PERCIASEPE [continuing]. Requirement—— 

Mr. MASSIE. If that fill is not harmful and you set up the guidelines and they abide by those guidelines, why do they need a permit? 

I am just—what I am testing here is the whole assumption that 

you are—that I think has been promulgated here, is that these 

guys are bad actors and you need to rein them in and they have 

got to get your permission before they can do anything. 

Mr. PERCIASEPE. We don’t think they are bad actors. We think 

they do amazing things. 

Mr. MASSIE. I don’t think they are either. They are building 

homes, but they can’t do it in my district because they are waiting 

months for permits and some of this is not even developable. 

I want to go to Agriculture here. Why did you seek to narrow 

down to 56 the number of agricultural farming practices? Why 

can’t we just assume the farmer knows how to farm? 

Ms. DARCY. Congressman, in the interpretive rule that accompanied this proposed rule, we worked with the Department of Agriculture and the Conservation Service to list 56 practices that are 

currently on the table—— 

Mr. MASSIE. So you are working with organizations in Washington, DC. That is great. 

48 

But why don’t we trust the farmers back home that they know 

what the practices are and assume there might be more than 56 

things you have to do to farm? 

Ms. DARCY. Congressman, those 56 things are ongoing conservation practices that we are saying are exempt from the Clean Water 

Act that we have not said before. 

So these are additional new things that have come into being 

since the passage of the Clean Water Act—— 

Mr. MASSIE. Can you tell me what is not exempt now? 

Ms. DARCY. What is not exempt? 

Mr. MASSIE. Yeah. What might a farmer do that is not exempt? 

Ms. DARCY. I could not tell you right now what is not exempt because most of the agricultural practices are exempt. 

Mr. MASSIE. Here is one thing that I am worried about. 

I am a farmer. I farm. I have got ditches. They have all got 

high—I mean, I could find a bed, a high water mark, a bank on 

these ditches. 

Isn’t that—how is that compatible with excluding ditches and 

then saying, if it has these features, that it is under your jurisdiction? 

Ms. DARCY. We have specific exemptions in the proposed rule for 

ditches. 

Mr. MASSIE. Do those exemptions extend to somebody who is 

spraying their fields and they have got a grassy ditch, for instance, 

that may flow only occasionally and they are using approved ag 

chemicals? 

Ms. DARCY. That is exempt from the Clean Water Act because it 

is an ongoing agricultural practice. 

Mr. MASSIE. That is comforting to hear, that none of my farmers 

will have to get a permit—this is what you are saying. Correct?— 

to spray their fields from either the Corps of Engineers or the 

EPA? 

Ms. DARCY. That is correct. 

Mr. MASSIE. All right. Thank you. My time’s expired. 

Mr. GIBBS. Mr. Davis. 

Mr. DAVIS. Thank you, Mr. Chairman. 

Thank you, Assistant Secretary Darcy, Deputy Administrator 

Perciasepe. 

I have a couple questions. 

Number one, the administration has committed to streamlining 

and expediting permitting for major infrastructure projects that 

move energy. 

However, it seems that the EPA waters of the U.S. rule will do 

just the opposite because it creates new subcategories of water that 

could be subject to Federal jurisdiction. 

Is there any way for the EPA, Mr. Deputy Administrator, to 

guarantee that this rule will not further delay permitting for energy infrastructure projects? 

Mr. PERCIASEPE. Our view is that we are not expanding the jurisdiction. So under the—and we are actually excluding some 

things that may be involved with some energy development 

projects. So, I mean, I don’t see how this will add to the burden. 

Mr. DAVIS. OK. I am going to get to a few more questions that 

I think may get back to this. 

49 

We are a little frustrated by what could be the regional approach 

to some of the permitting issues, and I am going to give you a couple examples in just a second. 

But you also mentioned, Mr. Deputy Administrator, that the—in 

your testimony the EPA and the Corps then worked with the U.S. 

Department of Agriculture to ensure that concerns raised by farmers in the ag industry were addressed in the proposed rule. 

Did you also consult with the EPA Science Advisory Board, 

which now includes, due to the Farm Bill, an amendment that I introduced, agriculture interests? 

Mr. PERCIASEPE. Science Advisory Board, did you say? 

Mr. DAVIS. Yeah. 

Mr. PERCIASEPE. The Science Advisory Board will be looking at 

this proposed rule before it goes final, but they haven’t completed 

their review. And we haven’t set—they are currently reviewing 

some of the science documents that go along with this as well. 

And one of the reasons, in addition to stakeholder requests, that 

we have extended the time period for public comment is we wanted 

to complete the Science Advisory Board’s review of some of the 

science documents so that that review is out there at the same 

time as the rulemaking docket is still open. 

Mr. DAVIS. All right. Another quick question on the energy side 

that I forgot to ask. 

Assistant Secretary Darcy, can you give me any idea how other 

agencies and industries, you know, subjectively determine what 

might actually be covered by a Clean Water Act permit? 

Ms. DARCY. Under the proposed rule? I mean, how would they 

comment? 

Mr. DAVIS. Yeah. Under the proposed rule. 

Ms. DARCY. Under the proposed rule, anyone who believes that 

they would be impacted by the proposed rule can comment to us. 

Mr. DAVIS. So through the comment process they can come in because they might believe that they could be impacted, could be required to maybe self-report, work with their regional offices, et 

cetera, on an energy infrastructure project? 

Ms. DARCY. Yes. Because then they would want to know if they 

would be subject to the rule. So, yes. 

Mr. DAVIS. All right. In your proposed rule, it mentions that 

waste treatment systems are not included in this—in the definition 

of the proposed rule of the Clean Water Act of waterways. Right? 

Ms. DARCY. Yes. 

Mr. DAVIS. OK. Does that change the EPA’s jurisdiction over 

aboveground septic discharge systems that many in my district actually have to utilize because of either soil-type issues or rural living arrangements? 

Mr. PERCIASEPE. I don’t—oop. I turned it off when I thought I 

was turning it on. 

I don’t believe EPA—EPA does not regulate septic tanks. 

Mr. DAVIS. You may want to check with your—you may want to 

check with your regional office that covers my State of Illinois because aboveground septic discharge systems are being regulated by 

that regional office under an NPEDS permit. 

And that is part of my frustration of maybe what you see and 

what you hear in Washington isn’t getting to your regional offices. 

50 

Because members of ag interests in the State of Illinois met with 

the U.S. EPA just very recently—it may have been yesterday or 

this morning—on what are the requirements for sep-—aboveground 

septic discharge permits. 

And it said that it is the response—the EPA in the region said 

it is the responsibility of the potential discharger to determine 

whether or not his or her system might discharge into a water of 

the United States. 

And it said even during this self-determination—this comes from 

the EPA’s guidance, Frequently Asked Questions on EPA’s NPEDS 

general permit for new and replacement surface discharging systems in Illinois, an FAQ sheet. 

I will go right to the point. It says, ‘‘If so, even though pollutants 

would not be carried to waters of the United States unless your 

area experienced an exceptionally wet season, you are still required 

to obtain coverage under a permit. Only if you are sure that your 

system would not discharge pollutants to a water of the United 

States or a conveyance that leads to a water of the United States 

should you forego obtaining a permit for a surface discharging system. If you do not obtain a permit, but actually discharge, you may 

be subject to an enforcement action under the Clean Water Act.’’ 

This gets to the point of the rule, sir. It specifically—it specifically says wastewater discharge systems will not be subject to the 

proposed rule and the change, but it—your regional office is basically saying ‘‘Self-report. However, we may fine you if you are 

wrong,’’ because it may actually discharge—according to their 

own—their own rule or their own guidance, it may discharge into 

a navigable waterway. 

Can you see where we have some problems here when it comes 

to what you are talking to us about and then what goes back to 

the region and then has a tremendous impact on the families that 

I represent and that all of us represent here in this country? 

Mr. PERCIASEPE. Well, I am at a loss to determine whether or 

not, I mean, first of all, this is a proposed rule so the regions are 

probably not dealing with it now anyway, but we think the waste 

treatment exclusion has been in existence before this rule. We are 

trying not to change it. 

So I can’t answer you here, and I will find out for you why something like that doesn’t fall under the existing waste treatment exclusion. I just don’t know the answer to it. 

Mr. DAVIS. Well, thank you, and I do appreciate your willingness 

to do so and I am going to end by saying this, because I am out 

of time: Many rural communities in Illinois, some of the poorest 

areas in Illinois have to rely upon an aboveground septic discharge 

system. 

And it is an issue where they can’t be worried about the EPA determining whether or not there is going to be an enforcement action based on this NPDES permitting process, that seems to be so 

vague and seems to be in direct contradiction with the proposed 

rule. 

So thank you for getting back to me. Assistant Secretary Darcy, 

thank you for your time, too. And thank you to both of you for 

being here today. 

51 

Mr. GIBBS. We are going to conclude this first panel. I want to 

thank you for coming. 

I have to comment, it is really amazing to me and really appalling, I guess, that this proposed rule has been put out even though 

the connectivity study hasn’t been completed. When you hear all 

the questions and everything, what is the jurisdiction, what includes its tributary ditches and all that, wetlands, but the study is 

not done, that is what creates all the ambiguity and vagueness 

here. 

And I think you really need to be concerned about that and really take note of the comments that are coming in from this hearing, 

otherwise we are opening up a whole can of worms and, I think, 

a trial lawyer’s dream come true with a lot of lawsuits and we don’t 

want to have litigation to cause more problems, so—— 

Mr. PERCIASEPE. Our objective is to reduce that, as Assistant 

Secretary said, and I appreciate what you are saying about the 

study. I mean, we had the draft study when we did this rule and 

that is one of the things. We promise we will not—— 

Mr. GIBBS. I don’t believe it was peer reviewed, and I don’t think 

it has comes to the finalization. 

Mr. PERCIASEPE. It had two prior peer reviews before it went to 

the SAB. So we can get into that detail. I know you are out of time. 

But we won’t finalize the rule without their final review. 

Mr. GIBBS. And I know you have been here for a while, I hope 

you can stay and at least hear the testimony of the next witnesses 

because I think they have got some really good comments and raise 

a lot of questions of where we move forward. 

Mr. PERCIASEPE. We look forward to working with them over the 

next 90 days. 

Mr. GIBBS. Thank you and we will take a couple minutes here 

to get set up for the next panel, too. 

[Recess.] 

Mr. GIBBS. The committee will come back to order. At this time, 

we welcome panel 2, and I am going to yield to Mr. Mullin from 

Oklahoma to introduce the first witness. 

Mr. MULLIN. Thank you, Mr. Chairman. And it is a great opportunity I have to welcome Oklahoma’s own J.D. Strong, who is the 

executive director of the Oklahoma Water Resources Board and 

also a fifth-generation farmer from Oklahoma. He has a very 

unique perspective. He even got his education at the Oklahoma 

State University, which as long as it is in Oklahoma, it is pretty 

good. We keep it at home. 

But, you know, J.D. has a very unique story to tell with the challenges at his farm and his family has went through year after year 

after year and the challenges that each generation has faced. At 

the same time, he brings a point of view from the State, and it 

really is important to understand that the State has a lot of stake 

at this. 

And when you have a gentleman that is so deeply rooted in Oklahoma and he is in a position and thought of enough in the State 

to be appointed to this position, we should really value his opinion. 

He is bringing it from not only the political standpoint but from a 

personal standpoint. 

52 

So, J.D., it is good to have you here. Wish the hair was a little 

kinder to you, but, you know, you can’t have all things and have 

the pie at the same time, right? 

So thank you for being here. 

Mr. GIBBS. I would also like to welcome Mr. Pifher. He is the 

manager of the Southern Delivery System of the Colorado Springs 

Utilities. He is testifying on behalf of the National Water Resources 

Association and the Western Urban Water Coalition. 

We also have Mr. Dusty Williams. He is a general manager/chief 

engineer for Riverside County, California, Flood Control and Water 

Conservation District. He is also testifying on behalf of the National Association of Counties and National Association of Flood 

and Stormwater Management Agencies. 

We also have Mr. Bob Stallman who is president of the American 

Farm Bureau Federation and a Texas farmer that I have known 

for many years. Good to see you, Bob. 

We also have Mr. Kevin Kelly. He is president of Leon Weiner 

and Associates, Incorporated, and also chairman of the board of the 

National Association of Home Builders. 

And we have Mr. Eric Henry. He is president of TS Designs, and 

he is here on behalf of the American Sustainable Business Council. 

Welcome, all. And Mr. Strong, the floor is yours to give your 

opening statement. 

TESTIMONY OF J.D. STRONG, EXECUTIVE DIRECTOR, OKLAHOMA WATER RESOURCES BOARD, ON BEHALF OF THE 

WESTERN GOVERNORS’ ASSOCIATION AND WESTERN 

STATES WATER COUNCIL; MARK T. PIFHER, MANAGER, 

SOUTHERN DELIVERY SYSTEM, COLORADO SPRINGS UTILITIES, ON BEHALF OF THE NATIONAL WATER RESOURCES ASSOCIATION AND WESTERN URBAN WATER COALITION; WARREN ‘‘DUSTY’’ WILLIAMS, GENERAL MANAGER/CHIEF ENGINEER, RIVERSIDE COUNTY, CALIFORNIA, FLOOD CONTROL 

AND WATER CONSERVATION DISTRICT, ON BEHALF OF THE 

NATIONAL ASSOCIATION OF COUNTIES AND THE NATIONAL 

ASSOCIATION OF FLOOD AND STORMWATER MANAGEMENT 

AGENCIES; BOB STALLMAN, PRESIDENT, AMERICAN FARM 

BUREAU FEDERATION; KEVIN KELLY, PRESIDENT, LEON 

WEINER AND ASSOCIATES, INC., AND CHAIRMAN OF THE 

BOARD, NATIONAL ASSOCIATION OF HOME BUILDERS; AND 

ERIC HENRY, PRESIDENT, TS DESIGNS, ON BEHALF OF THE 

AMERICAN SUSTAINABLE BUSINESS COUNCIL 

Mr. STRONG. Thank you. 

Thank you, Mr. Chairman, Ranking Member Bishop and members of the committee for this opportunity to testify before you 

today on behalf of the Western Governors’ Association and Western 

States Water Council, a couple of nonpartisan organizations, independent organizations representing the Governors of 19 Western 

States. 

I serve as chairman of the Water Quality Committee on the 

Western States Water Council and appreciate this opportunity to 

discuss concerns regarding the Clean Water Act, waters of the U.S. 

proposed rule by EPA and the Corps of Engineers. 

53 

First, we recognize that the EPA and Corps of Engineers actions 

have significant affect on States, not just in the West but across 

the United States; therefore, it is extremely important that States 

be regarded as full and equal partners, in fact, as coregulators 

under the Clean Water Act, as Congress intended for both the 

States and EPA to implement the Clean Water Act in partnership 

delegating much of the authority to States to administer those laws 

as they see fit within their respective States. 

And in this particular case, the Western States at least are 

unanimous in their concern for the fact that the States were not 

adequately consulted in advance of this rule being proposed. While 

there were communications, status reports, so forth, as coregulators and the ones that will be faced with much of the burden and 

cost of implementing what happens to waters of the U.S. across the 

United States, not being involved in that rulemaking process and 

actually drafting the rule is of great concern to the States and, of 

course, has led to much confusion here on the back end of the rulemaking process. 

As we noted repeatedly in our letters from the Western States 

Water Council, waiting until the public comment period to solicit 

State input does not allow for meaningful consideration of States 

views as well as alternative ways the States may have for meeting 

Federal objectives under the Clean Water Act. 

We also urge the agencies to recognize the Federalism implications of this particular rulemaking, particularly noting Executive 

Order 13132 that requires a higher level of consultation with 

States where Federalism implications do impact the States. 

And, in fact, in the preamble to this rule, the EPA and Corps of 

Engineers say, I quote, ‘‘This rule will not have a substantial direct 

effect on the States on the relationship between the National Government and the States or on the distribution of power and responsibility among the various levels of Government.’’ 

Of course, nothing could be further from the truth because the 

very goal of this rule is to define where Federal jurisdiction stops 

and where State jurisdiction begins. Nothing could have more of a 

direct and substantial impact on the balance of power between the 

Federal Government and the States. 

We reiterate what Governors Hickenlooper of Colorado and 

Sandoval of Nevada as chairman and vice chairman of the WGA 

said in their March 25 letter that the Agency should consult with 

the States individually and through the Western Governors’ Association in advance of any further action on this rulemaking; and 

would also reiterate concerns that the Science Advisory Board that 

is set up under EPA to help advise this rule does not have State 

representation, yet there is a great deal of State expertise when it 

comes to these matters, 27 experts on that panel and not one is a 

State agency scientist or expert. 

Finally, let me just jump to my Oklahoma-specific testimony with 

the very little remaining time that I have left and say that, on behalf of the State of Oklahoma and not necessarily Western Governors’ Association and Western States Water Council, I reiterate 

the concerns about coregulators not being just stakeholders but, in 

fact, should have been involved in the rulemaking upfront. 

54 

I would also reiterate concerns about getting the cart before the 

horse in terms of not waiting for the connectivity report to be finalized which can have a significant scientific affect on, I think, informing this rulemaking. 

And so it is encouraging to hear some of the words that were expressed today that this will not be finalized until then, and yet it 

is a mystery to me why you would even propose a rule without having the full vetting of that scientific report that should weigh so 

heavily on this rulemaking process. 

And lastly, a point that has been made in front of panel 1, I 

think, over and over again: Ambiguity. The point of this rulemaking is to ensure some clarity, which is very important for the 

States that have to implement the Clean Water Act rules. 

And yet, in our view, at least in the State of Oklahoma, we believe that EPA and the Corps of Engineers have simply taken an 

already fuzzy line of jurisdiction and simply moved it in a different 

direction, but it is not less fuzzy than it was before. Certainly, it 

defeats the purpose, I think, of this rulemaking process. 

So we look forward to trying to inform and provide additional 

constructive recommendations going forward that will hopefully 

clarify instead of make these decisions more ambiguous. At the 

same time, we think it takes more than a couple of 90-day extensions to the comment period in order for the States to be able to 

engage in a very meaningful and constructive process of informing 

this rulemaking. 

Instead, we think what we need is more like a timeout and going 

back to the drawing board. When the train is off the tracks, that 

is really the only way to get it back on in our view. 

So with that, I appreciate the opportunity. 

Mr. GIBBS. Thank you. 

Mr. Pifher, floor is yours. 

Mr. PIFHER. Thank you, Mr. Chairman, members of the committee. 

I would also like to thank representatives from the agencies that 

testified on panel 1 today, because I think they constructively 

added to the dialogue, but some of the clarifications they made this 

morning need to be placed in writing and that, I think, would serve 

all of us very well. 

I am here on behalf of the National Water Resources Association 

which represents urban and rural interests in the reclamation 

States of the West, as well as the Western Urban Water Coalition 

which represents large municipal water and wastewater providers 

and, in fact, serves over 35 million customers in the Western 

United States. 

Both organizations certainly fully support the goals of the Clean 

Water Act; after all, it protects the resource, the water which our 

municipal customers depend upon and our irrigators depend upon. 

So there is no disagreement there. 

That said, though, our members are the ones who plan for, design, construct and eventually operate the wastewater and water 

facilities that are so essential in the West, as well as stormwater 

control facilities; and it is our customers who foot the bill. 

We believe that the West, especially the arid portions of the 

West, are sort of the Ground Zero, if you will, for the impacts of 

55 

this proposed rule, because we are the ones with the dry arroyos 

and washes that flow only periodically, with the ephemeral and affluent-dependent stream systems, with the intermittent water bodies and the isolated water bodies and the head waters that often 

flow only in response to precipitation events or snow melt. 

So if the rule is going to have an impact anywhere, it is the 

West, and so we are watching this very closely, and on first reading, we think this is an expansion of Federal jurisdiction. You have 

now this new category of per se jurisdictional waters that didn’t 

exist previously. You have some new concepts of what adjacency 

means. It used to be just adjacent wetlands; now it is all adjacent 

waters. 

You have this neighboring concept which encompasses all waters 

in flood plains and riparian zones, and you have the new significant nexus test that we have heard a lot of testimony about already. But what that allows the agencies to do is aggregate water 

bodies that individually may be insignificant and all of a sudden 

they become significant. 

So the on-the-ground impact in terms of the membership of 

NWRA and Western Urban, could be substantial and it could be 

very time consuming and costly because it results in the need to 

obtain 404 permits where potentially they weren’t necessary in the 

past; even 402 permits, which are our point source discharge permits; and certainly 401 certifications from our States; and, perhaps 

most importantly, it can trigger NEPA reviews. And for those of us 

that have built projects, we know what that means. 

Let me give you an example. In the last 8 years, I have worked 

on two of the major new western water projects either just newly 

completed or under construction. One is Aurora’s Prairie Waters 

Project. It was $600 million-plus. It was a 35-mile, 60-inch steel 

pipeline, three pump stations, a water treatment plant and some 

diversions off the Platte River. That project was planned, conceived, designed, constructed and in operation in 5 years because 

we were able to avoid pulling the 404 trigger and avoid a NEPA 

review as a consequence. 

In comparison, Colorado Springs is now constructing an $800 

million reuse project, very similar to Prairie Waters Project, also 

three pump stations, a treatment plant, in this case, a 50-mile plus 

pipeline, and a new diversion outlet from the Pueblo Dam. In that 

case, we couldn’t avoid 404, and it took a decade just to get through 

the planning and permitting process, let alone the 5-plus years of 

construction and it was tens of millions of dollars in studies and 

tens of millions of dollars in mitigation. So it does make a difference. 

And we are concerned about not only those types of projects but 

also whether there will be any impact on the implementation of 

stormwater control measures. I heard what EPA had to say. I 

think there is obviously grounds for dialogue and discussion with 

them. What about activities where you transfer agricultural water 

out of ditches to municipal entities in times of drought? 

Because, again, the arid West is the focal point for drought, for 

fires and post-fire flooding and necessary remediation. We need to 

build new infrastructure, respond to all those challenges. It will 

56 

only become more difficult if we have to go through NEPA and permitting each step of the way. 

We are identifying in our written testimony some areas where we 

think a dialogue with the EPA and the Corps will be constructive. 

We fully intend to sit down with them and work through some of 

these issues, and we look forward to a resolution that achieves a 

reasonable balance. Thank you. 

Mr. GIBBS. Thank you. 

Mr. Williams, welcome. 

Mr. WILLIAMS. Thank you, Mr. Chairman. I am here today wearing two hats. I am representing the National Association of Counties, NACo, and also the National Association of Flood and 

Stormwater Management Agencies, NAFSMA, where I currently 

serve as president. We are concerned with the scope of the waters 

of the U.S. definitional proposal. While the proposed rule is intended to clarify issues, the proposal is significantly broader in 

scope. It takes Federal jurisdiction well beyond the section 404 permit program and has potential impacts on many of the other Clean 

Water Act programs. 

Key terms used in the definition—tributary, adjacent waters, riparian areas, flood plains and the exemptions listed—also raise important questions. It is uncertain how they will be used to implement the section 404 permit program effectively. While we appreciate that EPA and the Corps are moving forward with a proposed 

rule rather than a guidance document, our organizations have concerns with the process used to create the proposal and specifically 

whether impacted State and local groups were adequately consulted throughout the process. 

Under Executive Order 13132, Federalism, Federal agencies are 

required to work with State and local governments on proposed 

regulations that have substantial direct compliance costs. Since the 

agencies have determined that the definition of ‘‘waters of the U.S.’’ 

imposes only indirect costs, the agencies state in the proposed rule 

that the new definition does not trigger Federalism considerations. 

However, the agencies cost-benefit analysis states, quote, ‘‘Programs may subsequently impose direct or indirect costs as a result 

of implementation,’’ closed quote. In addition, we are also concerned with the sequence and timing of the draft science report and 

how it fits into the proposed process, especially since the document 

will be used as a scientific basis for the proposed rule. 

Because of the complexity of the proposed rule and its relationship with the report, the agencies should consider not only extending but suspending the current comment period and rereleasing the 

proposal with the updated economic analysis after the sciencebased conductivity report is issued. The approach would be welcomed by local governments. 

Both NACo and NAFSMA believe that the proposed rule would 

increase the number of publicly maintained stormwater management facilities and roadside ditches that would require Clean 

Water Act 404 permits, even for routine maintenance. Whether or 

not a ditch is regulated under section 404 has significant financial 

implications for local governments. 

Not only is the determination often very difficult, the multitude 

of regulatory requirements under the Clean Water Act can take 

57 

valuable time and cost substantial dollars, both of which are extremely significant to local agencies. This puts our Nation’s counties and flood and stormwater management agencies in a precarious position, especially those that are balancing small budgets 

against public health and safety needs. 

And while the proposed rule excludes certain types of upland 

ditches with less-than-perennial flow or those ditches that do not 

contribute flow to waters of the U.S., the key terms like ‘‘uplands’’ 

and ‘‘contribute flow’’ are not defined. Therefore, it is unclear how 

currently exempt ditches will be distinguished from jurisdictional 

ditches especially if they are near waters of the U.S. 

Most ditches are not wholly in uplands, nor do they strictly drain 

in uplands since they are designed to convey overflow waters to an 

outlet. To assist in visualizing some of these concerns, I would like 

to highlight a portion of my home county, Riverside County, California, and it should be on the screen. 

The blue line shows the current extent of waters of the United 

States. The second map shows the likely extent of waters of the 

U.S. under the proposed rule, a significant increase, and not because of flowing rivers or streams but because this area is in the 

arid Southwest. It is facilities like this that will lead to the dramatic expansion. 

Further, since stormwater management activities are not explicitly exempt under the proposed rule, concerns have been raised 

that manmade conveyances and facilities for stormwater management could now be classified as waters for the U.S. This would introduce localities to an expanded arena of regulations and unanticipated costs in that a locality will have to regulate all pollutants 

that flow into the channel including surface runoff rather than at 

the point of discharge. 

If stormwater costs significantly increase due to the proposed 

rule, funds will be diverted from other governmental services, such 

as education, police, fire, et cetera. Our members cannot assume 

additional unnecessary or unintended costs. 

The bottom line is that because of inadequate definitions and unknown impacts, our associations believe that many more roadside 

ditches, flood control channels and stormwater management conveyances and treatment approaches will now be federally regulated. While many of these waters are regulated under current 

practices, we fear the degree and cost of regulation will increase 

dramatically if these features are redefined as waters. 

I will be happy to answer any questions, sir. Thank you. 

[The slides accompanying Warren ‘‘Dusty’’ Williams’ opening remarks follow:] 

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Mr. GIBBS. Mr. Stallman, the floor is yours. 

Mr. STALLMAN. Thank you, Mr. Chairman, Ranking Member 

Bishop for holding today’s hearing. 

Farm Bureau has carefully analyzed the proposal that the Environmental Protection Agency and the U.S. Army Corps of Engineers published in the Federal Register on April 21. We have concluded that it broadly expands Federal jurisdiction, threatens local 

land use and zoning authority, and is an end run around Congress 

and the Supreme Court. 

The proposed rule would categorically regulate as navigable waters countless ephemeral Drains, ditches and other features across 

the country side. Features that are wet only when it Rains and features that may be miles from the nearest truly navigable water. 

The agencies use scientific sounding terms when referring to these 

features, terms such as ‘‘bed,’’ ‘‘bank’’ and ‘‘ordinary high water 

mark’’ to give the impression that the proposed rule would apply 

only to features that are always wet. However, such terms also define a low spot on the land with subtle changes in elevation, land 

where rain water naturally channels as it flows downhill after rain 

storms. 

EPA calls any such feature a tributary. This land is not even wet 

most of the time and it is prevalent in farm fields across America. 

EPA says the rule does not cover ditches. Well, EPA has said a lot 

of things, and its statement about ditches is simply not true. The 

proposed rule would categorically regulate all so-called tributaries 

that ever carry any amount of water that eventually flows to a navigable water. That is a ditch, in my world. 

There is an exclusion that is limited to a very narrowly defined 

and one might even say mythical subset of ditches that are excavated in uplands, i.e., the dry land and drain only uplands, the dry 

land along their entire reach. Over the last few decades, the Corps 

has added more and more plants and soils that qualify as indicators so it can classify even more areas as wetlands. 

Now, factor in EPA’s position that ephemeral Drains, also known 

as low spots, are also waters and not uplands, and you begin to see 

that one would be hard pressed to find a ditch that at no point 

along its entire reach includes waters or wetlands. I have been 

farming for decades. I have been on thousands of farms all across 

this country, and I can tell you that ditches are meant to carry 

water. That is why most ditches will be regulated under this rule. 

I should also mention that the agencies proposed to regulate waters and land that are adjacent to any newly defined water of the 

U.S., and also add a new category of other waters. This could, and 

probably will, sweep into Federal jurisdiction vast numbers of 

small isolated wetlands, ponds and similar features, many of which 

are not waters under any common understanding of that word. 

I would like to show a few examples of the types of land features 

the proposed rule would bring under Federal jurisdiction. Farm Bureau members from all over the country have been sending us 

photos of low spots, ditches and soils on their land, areas of their 

land that have the characteristics that would allow EPA and the 

Corps to assert jurisdiction under this rule. 

EPA is deliberately misleading the regulated community about 

the impacts on land use. If more people knew how regulators could 

62 

use the proposed rule to require permits for common activities on 

dry land or penalize landowners for not getting them, they would 

be outraged. It is hard to imagine that only 1,300 acres would be 

affected as EPA claims, when we have more than 106 million acres 

of wetlands that are currently being used for agricultural purposes, 

that is defined by USDA. 

In fact, Farm Bureau beliefs that this proposed rule would be the 

broadest expansion of regulatory control over land use and private 

property ever attempted by a Federal agency. It takes away land 

use decisions from State and local governments. It goes against the 

intent of Congress and the Supreme Court. And it negates your authority as Members of Congress to write the law of the land. 

The bottom line for farmers and ranchers is that the proposed 

rule will make it much more difficult and potentially impossible to 

farm near these land features. If farmers must request Federal 

permits to undertake ordinary farming practices on their land, 

such as pest and weed controls and fertilizer applications, and 

those permits are far from guaranteed, this is, in effect, a Federal 

veto over farmers and ranchers use of their land to produce their 

food, fiber and fuel. 

I will conclude by reiterating that the Clean Water Act itself and 

two Supreme Court decisions have said that there are limits to 

Federal jurisdiction under the law. Rather than define where there 

is a significant nexus to navigable waters, the agencies have just 

hit the easy button and issued blanket determinations that entire 

categories of water and land are significant. 

This results in Federal control over State, local and private landuse decisions, and it is not what lawmakers had in mind when they 

wrote the Clean Water Act in 1972. I urge Congress not to allow 

this unlawful expansion of Clean Water Act. 

Thank you for your time, and I will be glad to answer any questions you may have. 

Mr. GIBBS. Thank you. 

Mr. Kelly. Welcome. 

Mr. KELLY. Thank you, Chairman Gibbs and Ranking Member 

Bishop. 

I am a home builder and developer from Wilmington, Delaware, 

and this year I have the privilege and honor of serving as chairman 

of the board of the National Association of Home Builders. As 

builders of communities and neighborhoods, NAHB members have 

a vested interest in preserving and protecting the environment. 

Since 1972, the Clean Water Act has played an important role 

in improving the quality of our water resources and the quality of 

our Lives. Despite these successes, there continues to be frustration 

and uncertainty over the scope of the act and the appropriate role 

of the Federal Government in protecting the Nation’s waters. 

There still is no easy or predictable way to determine if certain 

types of waters are subject to mandates of the Clean Water Act. 

Therefore, to better facilitate compliance and improve aquatic environment, the U.S. Corps, and the EPA recently issued a proposed 

rule intended to alleviate uncertainty and clarify what areas are 

subject to Federal regulation. 

Unfortunately, and as we have heard today, the proposal falls 

well short of providing the needed predictability and certainty. It 

63 

also fails to follow the intent of Congress and Supreme Court 

precedent. Instead of limiting jurisdiction, the proposal unnecessarily increases Federal power over private property. 

Moreover, the proposal rule will provide little, if any, additional 

protection because most of the newly jurisdictional areas are already regulated at the State or local level. Although the agencies 

claim the rule does not expand jurisdiction, this is simply not the 

case. The rule would establish a broader definition of tributaries 

and include areas not currently federally regulated such as adjacent nonwetlands, as well as low spots within riparian areas and 

flood plains. 

Further, due to ambiguous definitions, the Agency would retain 

extensive authority to interpret the scope of the act as they see fit. 

As a businessman, I need to know the rules of the road. I can’t play 

a guessing game of, is it federally jurisdictional? But that is precisely what this proposal would force me to do. 

Additionally, despite the fact that the Supreme Court has twice 

affirmed that the Clean Water Act places limits on Federal authority, the proposed rule would assert jurisdiction over many features 

that are remote, carry only minor volumes of water or have only 

theoretical impacts on waters of the United States. In essence, the 

proposal ignores Supreme Court rulings. 

Ultimately, the rule will put more areas under Federal Government jurisdiction which will lead to more litigation and project 

delay, more landowners needing permits and higher costs of permitting avoidance and mitigation. And these expenses are not insignificant. The cost of obtaining a wetland’s permit can range from 

tens of thousands of dollars to hundreds of thousands of dollars, 

and that does not include the cost of mitigation or project delay 

which can be very substantial. As you can understand, the proposed rule will have real impacts on the construction industry and 

ultimately the cost of developing homes and rental apartments. 

To make matters worse, the agencies have not considered the totality of the rule’s impact or its unintended consequences. For instance, if the rule is finalized in its current form, builders may, and 

I underscore ‘‘may,’’ may have to obtain permits to perform maintenance on certain standard stormwater management controls because they will now be federally jurisdictional. 

Yet, the agencies have all but ignored these realities in their 

analysis. Equally problematic, the agencies have not completed, as 

has been said today, the report to serve as the scientific basis for 

the rule. Although the EPA Administrator recently affirmed the 

importance of science in guiding the Agency’s decisionmaking process, the agencies have pushed ahead with the rule without the necessary scientific data to support their conclusions. 

Defining which waters fall under Federal authority is not an 

easy task. But the Federal Government cannot take the easy way 

out by illegally asserting jurisdiction over everything. If agencies 

are interested in developing a meaningful, balanced and supportable role, they must take a more methodical approach, one that is 

based in fact and common sense and is true to the Clean Water 

Act’s intent and the Supreme Court precedence. 

Thank you, Mr. Chairman. 

Mr. GIBBS. Thank you. 

64 

Mr. Henry, the floor is yours. Welcome. 

Mr. HENRY. Thank you, Mr. Chairman, for your time. 

My name is Eric Henry. I am from Burlington, North Carolina, 

where I have lived for 50 years and had a business there for over 

30 years. The T-shirt and jeans I wear today are made and grown 

in North Carolina from a supply chain I helped develop called Cotton of the Carolinas. 

I understand the value and importance of clean water to both my 

business and my community, and I hope you will recognize by protecting the resources that are invaluable to a business like mine. 

I would also like to add, I think you would get brownie points today 

by saying that you are connected to a farm. My wife and I moved 

to a farm 3 years ago, so we understand the value of clean water. 

Burlington, where I live, used to be a very large textile town, 

home to many companies like Burlington Industry which was 

founded in 1923, one of the largest textile companies in our country. I remember growing up, there was a small stream across from 

where I live called Willowbrook Creek, where I lived for over 26 

years before I finally moved out, or my parents kicked me out. 

And I remember going across that stream and seeing blue, red, 

green, dead fish, dead crawfish, times that it would smell and this 

was pollution that was coming from the textile mills in our community. That got polluted to the point where it was like a toilet bowl 

that our community could drop their commercial and residential 

waste into. 

Today the Haw River, which is a critical part of a main tributary 

that comes through our county, is part of the rebuilding of 

Alamance County. Old mill communities like Saxapahaw and Glencoe, communities that had been dying out, are now becoming 

sought-out places to live, work and play. Much of this is due to 

EPA’s clean water regulations. As a small business owner who 

started business over 30 years ago while attending North Carolina 

State University, I witnessed firsthand the positive change that 

comes from bringing clean water back to our community. 

My T-shirt and my jeans that I wear today, reflect my business 

philosophy of a triple bottom line: Of people, planet, profit. This is 

particular sure of Cotton of Carolinas. We go dirt-to-shirt covering 

every step of the production process from the farm to the factory 

while supporting 500 North Carolina jobs in a completely transparent supply chain. You see the product I am wearing and get the 

benefit of wearing the product today instead of the high-priced 

suits most of you have to wear today. 

As a business owner with the daily focus of meeting payroll and 

growing sales, I appreciate the value that my Government partner 

brings to the table, the long-term value of clean water and clean 

air. I believe we have an obligation not just to protect the water 

for our communities we live in today but ensure that for future 

generations that we have access to that clean water. 

If protecting future generations truly matters to you, this is how 

we can show it. This is not a unique perspective among business 

owners. As part of the American Sustainable Business Council and 

the polling we have done, 92 percent of small business owners support the idea that there should be regulations to protect air and 

water from pollution and toxic chemicals, and I would like to point 

65 

out that 47 percent of that sample group were self-identified as Republicans. 

Clear national water protections are critical to making the waterways safe for families to swim, fish from and depend on for drinking water supply. They will ensure that the playing field stays level 

and that businesses like mine will be playing by the same rules as 

everyone else, that are fair and simple. 

Some people today only see the higher costs of cleaner water and 

the impact to their bottom line. They missed the long-term view. 

What happens when the water is polluted? You now have to look 

at the impact of the Elk River spill in West Virginia, and the concerns that that spill could have spread downriver into Kentucky. 

You only need to look at the recent spill in my State, downriver 

where Duke power and the coal ash fill, tens of thousands of coal 

ash fills, were discharged into the Dan River. 

The companies responsible for those spills don’t benefit from 

them. The Dan River spill is costing Duke Energy millions of dollars, and the company responsible for the Elk River spill, Freedom 

Industries, filed for bankruptcies. Companies like mine, which rely 

on a consistent source of clean water, surely don’t benefit. The people in these communities, the ones who can’t shower, bathe or 

wash their clothes, they don’t benefit. 

Our economy doesn’t benefit. The Elk River spill cost West Vir- ginia’s economy $19 million a day, according to research at Marshall University. By contrast, the clean water rules you are discussing today would have between $388 million and $514 million 

in annual benefits compared to the $162 million to $270 million in 

costs. There is a strong economic cost for regulations, not against 

them. 

We need to be the world leader in setting the bar for a better 

world, not just one with a cheaper and more polluted future. That 

is why I am asking for you to support EPA’s move to protect our 

clean waters. The people you represent and the companies we rely 

on for jobs and economic growth will thank you. Thank you for 

your time. 

Mr. GIBBS. Thank you. 

Thank you all for coming in. 

My first question to anybody who wants to answer it: I am really 

concerned, I believe when the Clean Water Act was passed in 1972, 

it was set up to be a partnership between the Federal Government 

and the State governments and I think we have come a long way, 

especially in point-source pollution and even nonpoint now to protect and enhance our environment and our water quality. 

And I am concerned that this proposed rule has potential to 

erode that State-Federal partnership, because, first of all, I think 

we heard today that the State EPAs haven’t been involved or consulted in the proposal or the drafting of the rule and that doesn’t 

sound like too much of a partnership to me. 

Does anybody want to comment about the State’s rights of this, 

about how you think the Clean Water Act has been functioning and 

how it can function even better if the State’s involvement is a partnership? Because I would argue, Mr. Pifher, when you talk about 

the differences out West, a one-size-fits-all policy in Washington, 

DC, to me, is a problem. 

66 

We have an umbrella here but what happens if the States don’t 

have that, are able to have that input to have that enforcement 

when we have issues that come up and step in? What is the longterm implications if this proposed rule goes through as it is drafted 

right now to that partnership? 

Mr. PIFHER. Well, if I could start. I think one of the implications 

is that we won’t have the degree of flexibility that is necessary to 

implement it on a more regional basis, if you will, based on different hydrologic and geologic and climatic conditions that we need 

to be aware of. In addition, we have different water rights systems. 

We have a prior appropriations system in the West as compared to 

the riparian system in other portions of the country and that influences, I guess, the way we address our waters and deal with issues 

surrounding both discharge of pollutants and what is jurisdictional. 

And that partnership does seem to be eroding and we need to 

find a better balance such that everything doesn’t need to be Federalized in order to be—we have to recognize everything doesn’t 

need to be Federalized in order to be protected; that State and local 

governments, both of which implement the Clean Water Act and 

the Safe Drinking Water Act, can do a very good job based on the 

site-specific conditions that they are faced with and the cost constraints they are faced with and we have to trust them to do that 

job. 

Mr. GIBBS. Mr. Strong, if you would. 

Mr. STRONG. Yes. No, I would just absolutely agree with what 

Mr. Pifher said and add that, in fact, as an example, a lot of the 

success stories in cleaning up water quality in the United States, 

some of which are featured on EPA’s Web site, include projects that 

were done in the State of Oklahoma on a voluntary basis with our 

State agencies working in partnership with our landowners and 

producers to accomplish those great successes in cleaning up water 

quality in the State of Oklahoma without Clean Water Act regulatory burdens being placed on—— 

Mr. GIBBS. I think you touched on a very important point I want 

to make, so anybody who is tuning into this can understand this. 

I said to Assistant Secretary Darcy in a budget hearing about a 

month ago that this proposed rule they are putting out, I think 

about the average citizen out there who has in their mind what 

navigable means, what I think navigable means, too, but they are 

implying then that waters that aren’t navigable aren’t being regulated. 

And we all know this isn’t the 1960s anymore, and obviously, 

there have been instances, I know Mr. Henry cited a couple. We 

have had our challenges and there has to be enforcement that has 

to happen, but the States are regulating the local governments for 

that matter, and so all waters are being regulated. My concern is, 

this rule erodes that partnership and maybe it doesn’t enhance or 

protect the environment or water quality but actually goes backwards. So I am very, very concerned about that. 

Mr. Stallman, on the agricultural side, we had the Secretary of 

Agriculture, Tom Vilsack, testify before the Ag Committee about 2 

months ago, and he said normal farming practices are exempt, but 

then he had to list the 56 that they specifically say that are exempt. Now, I think he was implying, I didn’t get a chance to follow 

67 

up, that agriculture under those 56, if they are working with 

NRCS, are exempt for 404 permits. 

But I am not so sure. I would like to see your viewpoint on this 

is, all normal farming practices that the Farm Bureau sees are exempt from 401 and other permitting under the Clean Water Act? 

Mr. STALLMAN. I appreciate the opportunity to comment on that, 

including probably some of Mr. Perciasepe’s assertions about the 

exemptions for farming. The interpretive rule, you have to look behind the curtain and understand what the law is and what the rule 

actually says. 

First, those normal farming and ranching exemptions only apply 

to section 404, not section 402 which is the NPDES permitting, 

which is now required for point sources which is a nozzle that applies an agricultural chemical. That is number one. 

Number two, it only applies to farming and ranching that has 

been ongoing since 1977. That was the assertion of the Government 

in a court case in 1987, U.S. versus Cumberland Farms of Connecticut, and that has been the position of the EPA and the Army 

Corps of Engineers that the normal farming exemption does not 

apply for those that have not been continuously in operation since 

that time. That would be a lot of older farmers. I started in 1974. 

The other is, is that by requiring compliance within our CS 

standards, now remember these have been voluntary incentivebased programs in the past, you are actually morphing them into 

a regulatory program and using those standards as part of a permission process to conduct normal farming and ranching activities. 

Two other points: I think, I don’t remember if it was Assistant 

Secretary Darcy or Mr. Perciasepe indicated that those 56 practices 

were the ones that would help improve water quality. Well, let me 

tell you what was left out, the practices that were left out that do 

contribute to water quality in terms of farming: Conservation crop 

rotation was left out, contour farming, cover crops, nutrient management, terracing and the massive use of no till and minimum till 

in agriculture today, 96.5 million acres for no till cropland, conservation tillage excluding no till, 76 million acres, that was excluded from these exemptions and I think most farmers today 

would concur that those are normal farming and ranching practices. 

Assistant Secretary Darcy also seemed to indicate you would not 

need a permit for spraying chemicals on farmland. Well, that is 

true as long as none of them are identified as waters of the U.S., 

and that does not mean spraying it in the water. That means the 

ditch that would be identified as a water of the U.S. that a molecule of chemical could get on. You still need to have a permit. 

Mr. GIBBS. We will get back to the ditches, but my time is up 

right now. 

I want to turn it over to Mr. Bishop for any questions he may 

have. 

Mr. BISHOP. Thank you very much, Mr. Chairman. 

I thank the panel for their testimony. I also thank you for your 

patience. It has been a long morning. 

Mr. Henry, let me first thank you for pointing out the connection 

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bility. I represent the eastern-most 75 or 80 miles of Long Island. 

The eastern-most part of those 75 or 80 miles has among them the 

highest property values in the country. 

And Mr. Kelly, I will tell you that it has some of the more successful and prosperous builders in the country. And those property 

values are what they are, and those builders are as successful as 

they are because of our efforts to protect and preserve the environment, and if the Long Island Sound were not a swimmable or fishable water, or Peconic Bay or Big Fresh Pond or Little Port Pond, 

we would not have the property values we have. 

So I think we all have to agree that we have made great strides 

with respect to regulating our waters and that in making those 

strides they have been supportive of economic development as opposed to antithetical to economic development. Having said that, I 

also think that we ought to, to the greatest extent possible, try to 

have a fact-based conversation and I think several of your testimony, you each said, many of you said that this regulation is in 

violation of congressional intent and in violation of, or in antithetical to Supreme Court rulings. That is simply not correct. 

In 1972, when the Clean Water Act was debated, it was debated 

whether or not navigable waters of the United States should be defined as navigable, in fact, and that interpretation was rejected by 

our predecessors. It was also rejected by the Supreme Court in 

1975. In Justice Scalia’s opinion in Rapanos, he said, and this is 

in his opinion, I am now quoting, ‘‘The Court has twice stated that 

the meaning of navigable waters in the act is broader than the traditional understanding of the term and includes something more 

than traditionally navigable waters.’’ This is Justice Scalia. 

Justice Kennedy came up with a significant nexus test and then 

directed, along with Justice Roberts, the two agencies involved to 

try to define waters that would meet those tests and as Mr. Kelly 

said, quite correctly, this ain’t easy. This is really, really hard, and 

they are trying to do that, and we now have a process in which 

stakeholders can influence the outcome of that. 

But here is something that I would hope you can guide me or 

help me with. If this rulemaking fails or if this rulemaking is withdrawn or if we pass the Energy and Water Appropriations Bill and 

language that is currently in that bill survives into law, that language says that Federal funds may not be used to promulgate this 

rule, we are left with the 2008 guidance. 

Now, I am going to read from something that the American Farm 

Bureau and the National Association of Home Builders submitted 

in 2008, and it says, and I am quoting, ‘‘The guidance is causing 

confusion and added delays in an already burdened and strained 

permit decisionmaking process which ultimately will result and is 

resulting in increased delays and cost to the public at large.’’ 

So my question is, A, does that represent the current position of 

the authors of that letter; and B, is it your position that the 2008 

guidance is preferable with its Flaws and imperfections, as outlined 

by your two organizations, is it preferable to the regulation that is 

currently being proposed? 

Mr. STALLMAN. The first answer to that, Mr. Bishop, is that we 

did ask for rulemaking because a guidance is not a rulemaking. A 

guidance does not allow for public notice and comment. 

69 

Mr. BISHOP. And you asked and they are delivering. They don’t 

like the rulemaking but they are, in fact, proposing a rulemaking, 

right? 

Mr. STALLMAN. They are proposing a rule. 

Mr. BISHOP. Yeah. 

Mr. STALLMAN. Now, getting back to the Supreme Court decisions, the one thing that has not been mentioned here this morning 

is that Justice Kennedy also wrote that remote and insubstantial 

waters that eventually may flow into navigable waters would not 

qualify under his definition of significant nexus. 

These proposed rules, definitions and descriptions go far beyond 

what he says would not qualify. So I am not sure. I think there 

is a difference of opinion here about whether this proposal is within 

the boundaries, as you call it, of the Supreme Court cases. 

Mr. BISHOP. OK. But if I may, does the statement that I just 

read, does that represent the current position of the home builders? 

So my question to be specific, is the 2008 position of the home 

builders also the 2014 position of the home builders? I am sorry, 

Farm Bureau. 

Mr. STALLMAN. I am the Farm Bureau. 

Mr. BISHOP. Farm Bureau. I do know the difference, by the way. 

Mr. STALLMAN. We do want a rule that restricts the scope of authority under EPA, based on the Supreme Court rulings that both 

have said that their scope is not unlimited. 

Mr. BISHOP. OK. I want to let Mr. Kelly answer and I don’t want 

to be argumentative, but I want to come back to a point. Mr. Kelly. 

Mr. KELLY. The 2008 rule is clearly preferable to the proposed 

rule, and given the choice, we would live with the 2008 rule. 

Mr. BISHOP. With all the imperfections? 

Mr. KELLY. With all its imperfections, and we have repeatedly 

pointed those out, and we have repeatedly asked for a new rule. 

But this rule is simply unacceptable to us. 

Going back to the question you touched on a little while ago 

about the permitting process. The last time we had figures, when 

we studied it, an individual permit took about 788 days to acquire 

and cost north of $280,000 without the mitigation that might have 

gone along with it. 

A streamline permit, based on again, the most recent information 

we have, and this goes back more than a decade, cost $28,000 and 

took 313 days. This just creates massive costs and uncertainty for 

homebuilders. 

I would also suggest that the current proposed rule may have the 

effect of creating a pall on land development in this country, and 

one of the greatest challenges facing the homebuilding industry 

now is the availability of buildable, developable land. Because, as 

you can understand, nothing was taken through the pipeline from 

2007 to recently. Nothing was brought through. 

So our members continue to tell us that they cannot find platted 

approved land to develop on with this rule in place, for the segment 

of our industry that specializes in platting and planning land for 

merchant builders to acquire. They don’t know what the rules of 

the game are at this point in time, and why would they spend hundreds of thousands of dollars on engineering when they have no 

70 

idea whether their piece of land will be subject to these very vague 

and ambiguous rules? 

Mr. BISHOP. My time has expired. Thank you very much. 

Mr. GIBBS. They are going to call votes shortly, and I will announce when that happens. 

Mr. Mullin. They haven’t called yet. Go ahead. 

Mr. MULLIN. Oh, I was going to say, not that I understand the 

bells around here nor does anybody else, but I was getting confused 

there. You have the TV on? 

Once again, I appreciate the panel for being here and Mr. Kelly, 

ironically enough, I have a couple of property companies. We are 

in the process right now of trying to get about 20 acres platted, and 

it is absolutely absurd what we are having to go through and the 

last time I had to go through, and the last time I actually purchased nonplatted land, which is very scary, was 2007, I believe 

and back then it was tough. Now, I don’t even know if—it is a 

chance to take, and so I do understand with what you are saying. 

I want to spend a little time with Mr. Strong. I think that is the 

first time I have ever called you that. It is always been J.D., but, 

hey, official titles, right? I want to spend a little bit more time with 

you on understanding a couple of things. 

One, I understand that you have been told, that your agency has 

been told that the rulemaking is going to be handled on a case-bycase situation; is that accurate in saying that? 

Mr. STRONG. Yes, that is accurate. When we, of course, asked 

some of our regional district offices what the impact of this new 

rule would be on jurisdiction within our State, we were told essentially that those types of decisions will continue to be made on a 

case-by-case basis, which sort of begs the question whether or not 

we are clarifying anything for everybody if every decision has to be 

made on a case-by-case basis. 

Mr. MULLIN. So if you are already being told that, then, the uncertainty that runs just in the State, not to mention by the time 

it trickles down to the farmers and to the homebuilders and to the 

other industries that depend on this, but when you are getting 

asked the questions, are you able to even make a decision now? 

Mr. STRONG. No, we are not. We absolutely are not. 

And you sure can’t tell, I think, from reading the rule. Certainly, 

the additional questions and answers from this hearing and followup calls that we are having now with the agencies are helping 

to clarify things. But I think, as Mr. Pifher said, what is important 

is what is in writing, and so even though we may get some clarification outside of the language of the rule through these types of 

forums, we need clarification in writing to give folks the finality 

that they need to be able to plan their businesses, their developments, and, as a State, to be able to implement these important 

programs to protect water quality in our States. 

Mr. MULLIN. So once it is clarified, how much time are you going 

to need to be able to get your agency spun up to be able to comply 

with the new rule that may or may not exist until you get a caseby-case clarification on it? 

Mr. STRONG. Well, I think if at the end of the day we got enough 

clarification in the rule that would support the statements made in 

the earlier panel that this really isn’t any expansion of jurisdiction, 

71 

then we would expect that it would have really sort of no additional impact on the burden on the States to implement the law. 

So really, it all sort of depends on what that clarification looks 

like. If it does, in fact, change the scope of jurisdiction in any way 

then it would take us more than 90 days, I can guarantee you that, 

to figure out what the impact would be on the States and our programs to implement these Clean Water Act programs as well as on 

our regulated communities. 

Mr. MULLIN. Have you guys already identified some, I guess, 

what is the word I am looking for here? Have you guys identified 

areas to where the State and the Federal agencies are conflicting 

with each other? 

Mr. STRONG. Well, I think, certainly, you could easily read the 

rule as it stands right now and identify areas where what we 

thought before was totally subject to the States jurisdiction could 

now be under the Federal jurisdiction which essentially removes 

the flexibility that was discussed earlier that is necessary for us to 

implement these programs in our States, in our various States with 

our very unique hydrology that is vastly different from State to 

State. 

Mr. MULLIN. I appreciate your time being here, J.D. It is always 

a pleasure to visit with you. 

Mr. Stallman, I want to go back to you real quick. With the 

Farm Bureau, the point I made earlier about existing farms, existing permits, have you guys had any clarification on this at all such 

as what they are referring to? 

Mr. STALLMAN. No. Not as was referred to by Mr. Perciasepe and 

Assistant Secretary Darcy. What we do know is it has been the position of the Corps and the EPA, based on the court case in 

1987—— 

Mr. MULLIN. Right. 

Mr. STALLMAN [continuing]. U.S. versus Cumberland Farms of 

Connecticut, that unless from 1977 on you had maintained a continuous farming operation for which you had an exemption there 

under the law that was passed by Congress—unless you maintained that continuously, you didn’t qualify. That means there are 

no young farmers and ranchers that will be exempt. 

Mr. MULLIN. So—and, if you could, just a couple more seconds 

here. 

So the heartbeat of this country being the farming community, 

in my opinion, is that—is threatened here by seeing permits that 

are required to do some of the farming that we have to be less 

available or even nonexisting. 

Do you—are you hearing that from your—from your members or 

is that kind of the assessment you guys are taking on your own? 

Mr. STALLMAN. More and more, as the information of the rule 

has gone out to our members and they understand what—the potential impact it could have on their farming operations, we are 

hearing that it will just not work. 

This law was never designed to regulate on a permitting basis 

agriculture. Our land is—our property is measured in acres, not in 

square feet. 

Mr. MULLIN. Yes. 

72 

Mr. STALLMAN. And the timelines involved in agriculture, the integration of what we do with whatever Mother Nature gives us, 

you know, we don’t have time to get the permits as the timelines 

are indicated it takes to get one, much less the cost of getting one. 

I will be honest with you. If my farm is determined to need a 

permit to conduct my normal farming operations that have been 

conducted for over 100 years there, there is not enough profit margin for the cost of permits for me to make an economic decision to 

seek a permit and continue farming. 

Mr. MULLIN. Thank you. 

Thank you, panel, for being here. 

Thank you, Chairman. 

Mr. GIBBS. We are still good on votes. We have 8 minutes; 410 

people haven’t voted yet. So I want to ask another question. 

There is a lot of concern—it is really a concern to me about this 

ditch issue and the tributaries. I mean, we had the first panel, and 

it was unclear. 

And when you read through the rule and the pre-am and some 

of the things of the rule, I think you can conclude that—at least 

I do—ditches can be tributaries and tributaries are not subject to 

significant nexus test. Tributary ditches, then, are categorically included, and significant nexus does not apply under the rule. 

Does anyone want to comment on that? Do you agree? The EPA 

said today that tributaries are included under the rule and that 

ditches can be included and then don’t have to meet a significant 

nexus test. 

Am I interpreting that right? Anybody want—Bob, do you want 

to—— 

Mr. STALLMAN. We agree. These are categorical definitions. And 

regardless of the assurances and intent expressed by Government 

officials, the only thing that will make a difference in court and litigation is what do the words of the rule say. 

We have seen EPA and the Corps throughout 30-plus years of 

litigation seek the very strictest definition that gives them the 

broadest scope of authority. 

And so, when you say bed, bank and ordinary high water mark, 

I can show you several miles of ditches on my farm that have those 

characteristics and, you know, then they become a regulated water, 

and they are not today. 

Mr. GIBBS. Yeah. 

So when I heard the previous panel kind of answer those questions we asked about ditches, they kind of inferred that most 

ditches would not be included, and I think they even inferred that 

local governments’ road ditches would not be a problem. It would 

not take a permit if they were going to do any cleaning of the 

ditches, because I specifically asked that question. 

So you are shaking your head, Mr. Williams or Mr. Pifher. 

Mr. WILLIAMS. Well, just real quickly, I heard from the previous 

panel that roadside ditches generally drain uplands and don’t go 

anywhere. 

In my county, when we collect the water, we have to take it to 

an outlet, and that is generally a tributary or some adequate outlet. That, by definition—is their definition, is a roadside ditch. 

73 

Mr. GIBBS. So the followup question, then, if it is ruled—if they 

rule it or it happens through litigation and you have to get a 404 

permit to clean your roadside ditches, then you, as a local government entity, are—I would think would be liable for not keeping the 

integrity of the ditch and—but maybe you couldn’t get the permit 

fast enough. 

Can you see a scenario like that occurring? 

Mr. WILLIAMS. Very much so. It is time and money. Both of those 

will be severely impacted. I agree with you. 

Mr. PIFHER. I would just add that most ditches, and certainly in 

Colorado and most areas in the West, at least the arid areas, take 

water off traditional navigable waters, I mean, by virtue of their 

water rights decrees. 

And then oftentimes they have an obligation even to return the 

water that they don’t consumptively beneficially use to a water of 

the United States; and, so, therefore, they are jurisdictional. 

And most of them have historically been jurisdictional. So, yeah, 

you can’t generalize and say most ditches are excluded. 

Mr. GIBBS. Well, me, as an elected representative, I interpret 

this as either their intent is a good intent or they have a hidden 

agenda and are not being truthful. I just don’t know. 

I am really, really concerned about this, because you guys made 

some good comments and good statements here and some of their 

statements in the previous panel were, ‘‘I don’t think so,’’ ‘‘I am not 

sure.’’ 

The vagueness and the ambiguousness of the whole issue is really concerning and I think it does open it up to litigation at the very 

least. 

Would everybody concur, that we have really got an issue here 

in the future if it goes through this way? 

Mr. HENRY. Mr. Chairman, can I make a comment, please? 

Mr. GIBBS. Yes. 

Mr. HENRY. You know, we are talking about ditches. We are talking about cost. We are talking about the lifeblood of societies, the 

water that goes through that. What I look to the Federal Government for is that long-term vision of the protection of that water. 

And I think, if you step away and look at the global implications 

of water and society, we have got some serious problems ahead of 

us. So we really have to look—you know, step back. 

I mean, this is a very serious problem we are dealing with, and 

I think we are just—we are getting into the trenches and we are 

missing the big picture. I mean, you know, destroying our water 

quality affects the quality of our life. Look what is happening to 

China right now. 

Mr. GIBBS. There are no regulations over there. That is part of 

the issue. But I would think that—go ahead, Mr. Stallman. You 

can comment. 

Mr. STALLMAN. Well, let me respond to that. Yeah. You know, 

that is the big-picture stuff, but let me talk about how it works on 

the farm. 

Prescribed grazing is one of the so-called exempt practices for 

those few farmers that will qualify for it. So the implication is, if 

you do not qualify for it, then prescribed grazing is not an exempt 

normal farming and ranching activity. 

74 

And, therefore, if you are doing prescribed grazing in a ditch— 

and you have to understand my country is kind of flat. We have 

a lot of ditches where we let cows graze to keep them cleaned out 

where they actually will carry water. 

If that requires me to fence off those ditches to keep them from 

grazing or to get a permit to allow those cows to graze there, you 

know, once again, I will shut it down because the cost—the economics will not work. 

So that is where it gets down to the farm. 

Mr. GIBBS. Yeah. 

And, Mr. Henry, I don’t think anybody on this panel or anybody 

on this dais doesn’t want to do everything they can to make sure 

that our water quality is improved and we enhance it and protect 

it, but we can also regulate ourselves to death and actually go 

backwards. 

And the one example I have talked about previous to the hearings with the EPA is my personal example as being a former hog 

farmer. 

The years the hog market went south, we tried to stay in business, pay the employees, pay the bills, and the years we could 

make some money, then we looked at doing things on the farm to 

improve grass waterways and do things. 

But if we put so much burden and regulation on people like— 

farmers like Mr. Stallman, the environment is going to suffer. So 

we have to be reasonable about this. We should never forget that 

the Clean Water Act was set up to be a partnership between the 

States and the Feds. 

And this concern I have with this rule moving forward is that it 

is eroding that partnership and we will have degradation of our 

water quality in the United States and, also, our economy and jobs. 

So I need to conclude because we have to go vote. I don’t think 

there is any reason to come back. I think we have pretty much got 

the message and everybody hit their point. 

And I really do want to thank you for coming in and being here 

for several hours. 

So this concludes the hearing. Thank you very much. 

[Whereupon, at 1:26 p.m. the subcommittee was adjourned.] 

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